Ya Got Trouble in River City

By Salvador Mungia.  

As lawyers and judges our reputations are central to who we are. A sanction by the Bar, or by the Commission on Judicial Conduct, puts a stain on that reputation that, while it may fade after time, will never go away. We, as lawyers, should be the first to call out a wrongful sanction upon another lawyer. We, as lawyers, should be the first to call out a wrongful sanction on a judge.

This is a call out.

David Keenan’s Unusual Path to the Bench 

Dave (I will refer to David Keenan at times as “Dave” because he is a friend of mine and at times Judge Keenan because that is the position he holds) did not follow the conventional route of becoming a lawyer, much less a judge. When he was a teen, placing a bet that Dave would someday become a judge would be like buying a lottery ticket for the mega-millions lottery – possible, yes, probable, not so much.

Without going into detail, Dave grew up poor. Aid to Families with Dependent Children, food stamps, chronic shortage of food, hunger, living in a basement duplex behind a motel. Many arrests but, like Big Jule in Guys and Dolls, “no convictions [1].” He dropped out of high school when he was a sophomore after having been suspended (three times) from Seattle Public School District. He was 17 and working at a Jack in the Box, no intention of returning to school, with a future looking as bleak as a Northwest winter’s day.

Someone convinced Dave he should at least get his GED. He took the GED exam through North Seattle College – a nonprofit community college. Dave did so well on the GED that the dean of student development at North Seattle College wrote him encouraging him to continue his education. As the old saying goes that was a game no, make that a life, changer for Dave.

He studied and obtained his high school diploma through North Seattle College’s “Adult High School Completion Program.” He then obtained his two-year degree at North Seattle College while working full-time at night as a security guard. (I have no doubt that Dave made one heck of a security guard – he is tall, has a voice that makes a bass drum envious, and can put on a look that would make Michael Corleone shy away. To be fair, and so I avoid that look the next time I see him, he also has a smile that will light up a room.) Dave then attended the University of Washington and obtained his undergraduate degree. He went on to Seattle University where he earned his law degree, summa cum laude, while working full time as a federal agent for the Homeland Security Investigations.

Dave was hired by Orrick, a large firm, out of law school where he began giving back to his community by doing pro bono work. Dave, being grateful for the role that North Seattle College played in changing his life, remained involved with his alma mater.

In 2016 he ran, and was elected, to the King County Superior Court. He was re-elected in 2020. Dave’s path of becoming a lawyer, and then a judge, was lightyears away from the path most of our judges were forced to travel.

No Good Deed Goes Unpunished 

In 2019 North Seattle College asked Dave if he would appear in a bus ad for the school as part of their student recruitment campaign. Dave reviewed Canons 3 and 1 of the Code of Judicial Conduct and reviewed the Ethics Advisory Opinions (“EAO”). He agreed to do the ad but told the school that he would wear a suit and tie, and not his robe. The ad had his picture (with him smiling) with the three following sentences. “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.”

Some people want to become lawyers to make money. (And if that’s the primary reason, they usually aren’t happy lawyers.) Some because they want to fight for the underdog and become public defenders or civil legal aid attorneys. Some who wanted to fight to protect the environment. We all have our reasons.

Dave had his – to help, in part, marginalized communities.

Apparently having Dave tell the community that he became a lawyer, in part, to help marginalized communities and had his start at North Central didn’t sit well with somebody.

Someone Complained 

Someone filed a complaint with the Commission on Judicial Conduct because Judge Keenan said he became a lawyer, in part, because he wanted to advocate for marginalized communities and that he got his start at North Seattle College.

Getoutofhere.

If you’re thinking that this complaint got about as far as a slug would get crossing a bed of salt then my friends you are sorely mistaken. Not only did the complaint get far, the Commission found that Judge Keenan violated three rules of the Judicial code.

Fortunately, our State Supreme Court had the last say in this matter. In legal terms the Court said: “yeah, we don’t think so.”

Just a quick overview. For you legal scholars out there, this is not a comprehensive discussion of the Commission or the Court’s opinion. So -- no letters to the author saying that I was superficial in my discussion (which, of course, I’m going to be.)

First, the Commission opined that a reasonable person could read the ad to “suggest that Judge Keenan has a leaning, or preference, and would advocate accordingly for marginalized communities.” The Commission further believed that a person not from a marginalized community could “reasonably be concerned about being treated unfairly by Judge Keenan.”

You’vegottobekiddingme.

First, the Commission used the wrong standard. The Supreme Court corrected the Commission by pointing out that the standard is not could a reasonable viewer perceive the judge’s conduct adversely reflected on the judge’s impartiality but instead is whether a reasonable view would take such a view. In other words, the Commission should have asked whether a reasonable viewer, looking at the ad, would conclude that Judge Keenan would tend to rule for marginalized communities as a judge. Answering that question the Supreme Court was clear and to the point: “We hold that the answer is no.”

And that was the right answer. Using a “could” and not a “would” standard would pretty much kick every single judge out of their robes. I’m sure that a lot of defendants in criminal charges could view a judge who was a former prosecutor who attends an event for prosecutors would not be impartial in hearing their matter. A plaintiff in personal injury actions could view a judge who had spent her entire career as a defense attorney who receives an award from a defense attorney organization as not being impartial. I could go on but you get the idea.

Second, the Commission opined that Judge Keenan abused the prestige of the judicial office to advance the economic interest of others. The Commission opined that the ad aimed at increasing student enrollment and thus would advance the economic interest of the college. While true, it is settled that a judge may promote their law school and in fact may send letters to prospective law students urging them to attend their alma mater. (EAO 96-06 opined that a judicial officer is permitted to appear in a promotional law school video that the school sent to prospective students. EAO 21-02 concluded that a judge is allowed to write a letter to prospective law students on behalf of the judge’s law school “in an effort to further diversity at the law school.”)

The Commission wasn’t convinced and thought that the connection between a community college and going to law school was too tenuous.

The Commission, at least the judges and lawyers on the commission, likely had a different path to becoming a lawyer than Judge Keenan did. He saw, and sees, that people need to  know that going to a four-year institution is not the only path to law school – that the path exists for those who go to a community college as well. The Supreme Court agreed with Judge Keenan. The Supreme Court, and Judge Keenan, got it right.

YA GOT TROUBLE 

As the Music Man is wont to say, “Ya got trouble, my friend, right here, I say, trouble right here in River City.”

Well, it looks like we got some trouble with the Commission. And here’s why.

First, after the Commission admonished Judge Keenan it issued a press release and displayed the admonishment on its website. After the Supreme Court reversed and vacated the admonishment, you would think that the Commission would issue a press release saying Judge Keenan did not do anything wrong and instead they were wrong in admonishing him. Well, as you are guessing right now, that didn’t happen. It never issued a press release. In fact, the Commission failed to update the summary on its website to reflect the reversal and vacation by the State Supreme Court until weeks after the decision.

If you, as a state agency, have the power to publicly admonish a judge, then you have the responsibility to publicly state that you were wrong in issuing an admonishment.

Second, a structural change should be made to the Commission: it is both prosecutor and judge – that is, the
same Commissioners who bring the charges are the same Commissioners who make the ruling. The better model, as called for by the Model Rules and as other states have put in practice, is to have one set of Commissioners decide whether charges should be brought and another set to hear the evidence.

Finally, the Commission needs to step back and look at how it operates. It used the wrong standard in reviewing Judge Keenan’s manner. It failed to recognize the reluctance, which was very strong, expressed in four separate opinions filed by four non-judge members on the Commission. The Commission should publicly acknowledge the role of the Commission in combating racism and promoting diversity, equity, and inclusion on the bench as outlined by our Supreme Court in its Open Letter to the Judiciary and Legal Community. Indeed, the Commission should incorporate regular and sustained implicit bias training. It should diversify its own membership.

We have trouble in River City. Changes should be made. When one of our fellow lawyer’s or judge’s reputations are wrongfully stained, we all should do what we can to eradicate that mark.

 

Salvador A. Mungia is a partner with Gordon Thomas Honeywell and is a past- president of the Tacoma-Pierce County Bar Association. He is a past-president of the WSBA and, as he acknowledges above, a friend of Judge David Keenan. 

[1] For my fellow lovers of musicals, the complete quote by Big Jule: “Well, I used to be bad when I was a kid, but ever since then I’ve gone straight, as has been proved by my record: Thirty-three arrests and no convictions.”