Editorial Note: The content of this article has been edited to primarily focus on state, federal and local judges, not appointed federal executive branch immigration judges. The advice offered by the author and its overall substance, however, is unchanged. Immigration law and adjudication in the recent past and under the current federal policy create several ethical dilemmas for judges.
For judges in the judicial branch, whether federal or state, ethics issues arise in indirect ways. Most recently, media attention has focused on judges who sought to evade immigration enforcement in their courtrooms or courthouses. One former judge in Wisconsin recently received a monetary penalty after her conviction in a federal court for the crime of obstructing law enforcement (United States v. Dugan). Another judge in Massachusetts is facing discipline for a similar event that occurred several years ago (In re Shelley Joseph). This article focuses on how to avoid those outcomes by adhering to fundamental Rule of Law concepts that include acknowledging the proper scope of law enforcement in a courthouse.
Judges and court administrators have fundamental obligations to the public users of their court systems. These obligations include providing safe spaces for litigants to bring their claims and defend their cases. Judges have no reason to know the immigration status of individuals who appear before them in most instances. Whether judges have a duty to inquire will depend on the specific issues in the matters before them and may have implications for defendants in criminal matters. But do judges have individual responsibilities to protect litigants from immigration enforcement in their courtroom? Here, the answer should be no different from any other law enforcement action. But that does not answer the question.
The judges who have faced prosecution and discipline for various degrees of facilitating litigants’ evasion of immigration enforcement were responding in the moment without a clear process or thoughtful evaluation. Court systems should, and often do, have policies for law enforcement activities in the court facilities. Some do not permit law enforcement in the courtroom but allow law enforcement after the proceeding has concluded. So too, many courts require law enforcement officers present to execute a law enforcement action to notify a court officer (preferably not the judge) about the purpose and show any supporting documentation. These procedures apply regardless of the law enforcement agency (federal or state) or purpose (criminal, immigration, or other). If a court does not have a policy, judges should develop their own in advance of encountering the situation. Court staff should be informed of their expected role in engaging with law enforcement present for these purposes, as well as procedures should law enforcement fail to abide by the procedure.
For judges in single-judge sites or those without direction from court administrators, having a plan and sharing that plan with court staff are essential. Any plan should prioritize treating all law enforcement equally without regard to their purpose and provide a safe and welcoming environment for all users of court facilities. In all activities, judges must uphold the law while promoting the integrity and independence of the judiciary (Canon 1, ABA Model Code of Judicial Conduct). This overarching principle is hardest to apply where the situation is unanticipated, unwanted, and disruptive. By thoughtfully anticipating a formal and reasonable response, judges can fulfill their ethical obligations while providing a safe forum for all who seek access to their courts.