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July 01, 2017 Judicial Ethics

The Ethics of a Sanctuary Courthouse

By Marla N. Greenstein

In light of the recent aggressive federal enforcement of immigration law, some legal and judicial leaders in the states have asserted courts as “safe harbors” for immigrants. The Maryland attorney general asserted in a letter to federal authorities in March of this year that he did not want the most vulnerable immigrants to be discouraged from seeking judicial protection and medical care. By declaring courts and hospitals “safe locations,” the attorney general’s letter reassures members of this vulnerable population that they can continue to use these services without fear. Both the chief justice of California, Tani G. Cantil-Sakauye, and the chief justice of Washington, Mary Fairhurst, made similar declarations for their respective state courthouses. They both expressed concern that immigrants could be discouraged from seeking access to justice if, by appearing for court hearings, they risked arrest.

Generally, judges are not required to report violations of laws arising in courtrooms that are unrelated to the matter at hand. (See, for example, Maryland Judicial Ethics Opinion 2004-007, April 2, 2004.) Most typically the issue arises where in a divorce proceeding a judge becomes aware of a spouse’s failure to file tax returns or, in a partnership dispute, becomes aware of hidden assets. Ethics bodies and courts do not impose additional duties on judges to report these violations to the appropriate law enforcement agencies, but instead emphasize the primacy of the matter before the judge. So, too, if a judge may become aware of a party’s immigration status in a civil proceeding that does not affect the outcome, there is no affirmative duty for the judge to report possible immigration violations.

By extension, the two state chief justices and others who seek to make state courts “safe” for immigrants to address domestic violence, landlord-tenant disputes, or any dispute where they seek the assistance of the state justice system are consistent with the role of judges in any individual matter. However, in conveying this message, it is imperative that the emphasis be on ensuring access to justice and not be viewed as interference with legitimate law enforcement concerns. The ABA Model Code of Judicial Conduct emphasizes in Rules 1.2 and 2.2 the fundamental obligations of all judges to promote public confidence in the judiciary and uphold and apply the law impartially.

Clearly responding to this tension between ensuring access to the courts to all and honoring and respecting federal law enforcement, the Conference of Chief Justices and the Conference of State Court Administrators have compiled a resource center for “Improving Relationships with ICE [U.S. Immigration and Customs Enforcement].” Their easily accessible website provides various statements from judges and “justice stakeholders” on the topic, federal Department of Justice statements and materials, and legal citations to authorities of courts to limit access to their facilities or court information. In addition, legislative attempts to address these issues are listed. All are available on the NCSC (National Center for State Courts) website.

For judges not in jurisdictions where a clear policy statement has been articulated, the ethics of any individual situation will be in the discretion of that judge. When faced with the attempt of law enforcement to interfere with the ability of a person to attend a local court hearing on the basis of that person’s immigration status, a judge will face the essential mandate of judicial ethics: to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

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