On Thursday, October 3, 2024, the Arizona Capitol Times reported that the Arizona Supreme Court has chosen to keep under wraps a formal opinion stating that justices acted improperly by wearing their robes during a religious event. This decision follows a recent alteration in the court’s oversight of an ethics committee.
The Judicial Ethics Advisory Committee had been asked to assess the ethical implications of judges wearing their official robes at the Red Mass, an annual Roman Catholic event that gathers attorneys, lawmakers, and judges to seek divine guidance for the upcoming year.
The committee’s formal opinion, issued against the practice, highlighted concerns about the potential appearance of undue influence. After the high court requested a reconsideration of the opinion, the committee reaffirmed its stance. However, a majority of justices later voted to withdraw the opinion, effectively preventing it from being publicly accessible and from being included in the state’s ethics regulations.
This ability for the Supreme Court to withdraw an opinion is a recent development. In August, the court implemented an emergency rule that allows it to review formal advisory opinions from the Judicial Ethics Advisory Committee before they become final. April Elliot, the staff director of the committee, commented on the expanded options this rule provides, allowing the court to approve, disapprove, modify, or request further guidance on advisory opinions.
The Judicial Ethics Advisory Committee operates separately from the Commission on Judicial Conduct, which investigates complaints against judges. Requests for opinions can be made by judges, judicial candidates, or court personnel, but must pertain to the inquirer’s own conduct.
In January, Justices William Montgomery and Kathryn King, along with Court of Appeals judges Daniel Kiley and Randall Howe, attended the Red Mass in Phoenix. Photographs circulated by the Arizona Catholic Sun and the St. Thomas More Society showed King and Montgomery in their robes during the event. King participated by delivering the first reading, while Montgomery led a renewal of the attorneys’ oaths to the State Bar of Arizona.
Following the event, the ethics committee received a request to evaluate the ethical considerations of judges wearing robes while fulfilling special roles at the Red Mass. According to documents obtained by the Arizona Capitol Times, the unpublished opinion was developed after multiple inquiries from judicial officers. The committee ultimately decided to issue a formal opinion, which was presented in June, stating that while judges can attend religious services in their personal capacity, they should not wear their judicial robes during such events. The robe symbolizes the duties of judicial office, and its use in a religious context could undermine public perception of judicial independence and impartiality.
The committee reinforced its opinion by referencing three key rules from the Code of Judicial Conduct. The first rule emphasizes the necessity for judges to act in a manner that promotes public confidence in the judiciary’s integrity. A second rule prohibits any actions that could create an impression that a judge is susceptible to external influence. The third rule allows judges to engage in extrajudicial activities, provided they do not appear to undermine the judge’s independence or dignity.
The opinion also noted a “hardline rule” from an earlier ethics opinion, which banned judges from attaching pins or symbols to their robes, underscoring the significance of the robe as a representation of judicial authority. The committee acknowledged that while the Red Mass is related to the legal field, it fundamentally remains a religious service aimed at seeking divine guidance.
In June, the Judicial Ethics Advisory Committee submitted its formal opinion, coinciding with a petition from the administrative office of the courts for a rule change that would allow for Supreme Court review of advisory opinions before they become final. On June 18, justices, excluding Kings and Montgomery, ordered a reconsideration of the opinion. The committee reaffirmed its decision in July.
The justices discussed the proposed rule change during their August 20 meeting and subsequently approved it, granting the Supreme Court final authority over any ethics opinions. On August 28, the same justices voted to withdraw the opinion entirely.
Justice Clint Bolick communicated to Elliot that the withdrawal was not a judgment on the opinion’s merits but rather a request for a more comprehensive analysis from the committee. Elliot noted that while the ability to withdraw an opinion was previously rare, it is within the court’s powers.
Looking ahead, Elliot expressed the possibility of further inquiries into the Red Mass issue, as the committee may consider revisiting the topic in response to new requests. However, she acknowledged that any future opinions would need to differ from the previous one, as reinstating the original opinion would likely not be accepted by the court.
Source: Arizona Capitol Times
