Judges are supposed to be impartial, and they’re supposed to appear impartial, too.

That means that generally judges cannot comment on matters that might appear before them—especially the constitutionality of any pending or enacted legislation.

It’s why Supreme Court nominees routinely refuse to comment on a variety of matters during their Senate Judiciary Committee confirmation hearings.

That’s what makes the recent decision of Anita Josey-Herring and Anna Blackburne-Rigsby, the chief judges of Washington, D.C.’s local trial and appellate courts, respectively, so perplexing and so troubling.

They issued a joint letter to the chairwoman of the D.C. Council’s Committee on the Judiciary and Public Safety purporting to speak for both of their courts and the entire D.C. court system about pending criminal justice legislation in order to provide their “perspective on several of the Act’s proposed provisions.”

Their comment on one passage in particular—an amendment that would “require gun offenders who are on probation, supervised release, or parole to agree to submit to a search when they are in a public place”—stands out for three reasons:

First, they comment on the constitutionality of the proposed provision, saying that “the proposed legislation appears to violate the Fourth Amendment’s prohibition on warrantless searches of individuals without probable cause.”  And they point generally to Terry v. Ohio (1968).

That’s notable because judges are not supposed to comment about the constitutionality of pending legislation. Why? They might very well be asked to decide whether the legislation is constitutional when a case is brought before them. If they have already publicly commented on it, or opined about its constitutionality, how can they reasonably be said not to have prejudged the matter, as required by the relevant ethics canons and rules? 

At a minimum, their requirement to maintain their appearance of impartiality is shot.  And their comments appear to even violate the rules that their own law clerks and employees must adhere to when refraining from commenting on public matters. (Of course, comments about internal workings of the court system or separation-of-powers concerns might be permissible in certain circumstances. But this particular comment falls into neither of those categories.)

Moreover, what the chief judges did here is arguably worse than if they had commented in their individual capacities. By claiming to speak for all of the judges on their courts, they have created issues of impartiality and appearance of impartiality for every judge on each of their courts. After all, has any judge publicly disavowed the comment or disagreed with its analysis?

If not, they should.

That’s because, secondly, the chief judges’ “constitutional analysis” makes no sense and is just wrong.

Terry v. Ohio established that, in certain instances, police officers can search suspects based on a reasonable, articulable suspicion of wrongdoing or safety concerns—even if the officers lack probable cause to arrest. 

What’s more, the Supreme Court has explicitly upheld provisions such as the one the D.C. Council is considering.

Even though the chief judges said that they understood this proposed provision to be “based on existing California law,” they acknowledged that they did not know “the legal basis for California’s law 
 .”

Basic Fourth Amendment search-and-seizure issues are the bread-and-butter of many criminal cases.  As such, the judges should have already been familiar with the Supreme Court’s rulings in this area in order to effectively do their jobs. But even  a perfunctory search would have shown that the Supreme Court held in Samson v. California that “a suspicionless search, conducted under the authority” of California’s statute requiring parolees to “agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause” did not violate the Fourth Amendment.

So, when the chief judges wrote their letter were they being sloppy?  Were they being dishonest?  Or were they simply unaware of basic Fourth Amendment issues? 

It doesn’t matter, because regardless of the answer, they have undermined confidence in the ability of the judiciary to fairly and impartially decide this impending issue were it to come before any member of their courts—a violation of the ethical canons and rules.

After all, the U.S. Attorney’s Office for the District of Columbia, which would likely be litigating the issue in front of these judges, felt compelled to issue a press release two days after the judges’ letter, saying the office is “confident that the legislation complies with the Fourth Amendment.”

Third and finally, the chief judges ended their analysis of this provision by “welcom[ing] an opportunity to review the statute on which this provision is based and provide additional comments, if warranted.”

Clearly, they have forgotten that their role is to adjudicate cases and controversies that come before them. Their job is not to participate in the legislative process.

By doing so, they have cast doubt on their ability to fairly and impartially decide issues that come before them and have brought discredit on themselves and their colleagues.

The District’s Commission on Judicial Disabilities and Tenure should  look into the matter, and more importantly, members of the House and Senate Judiciary and Oversight committees should look into the matter, too—and demand answers about why these judges thought issuing this letter was appropriate.

After all, if we can’t count on the chief judges of the District of Columbia’s local courts to follow relevant rules and basic norms of behavior, why should we expect anyone else to do so?

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