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Committee on Judicial Ethics Opinions Wants Input on Proposed Advice on Responding to Election Criticisms
By a MetNews Staff Writer
The California Supreme Court Committee on Judicial Ethics Opinions yesterday released for public comment a draft formal opinion that urges caution on the part of judges in relying upon a 2020 amendment to the Code of Judicial Ethics authorizing responses to criticisms of decisions that are voiced in connection with elections.
Through efforts of the committee, there was added to Canon 3B(9)—which, in general, provides that “[a] judge shall not make any public comment about a pending or impending proceeding in any court—this language:
“In connection with a judicial election or recall campaign, this canon does not prohibit any judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.”
The proposed opinion specifies that the canon “applies to any judge, not just the one being criticized.”
‘Ethical Parameters’
It sets forth these “ethical parameters” of a response:
“[T]he committee advises that judges utilize this tool with caution. The committee encourages judges to consider how commentary (or absence of the same) may affect public perception of the integrity, impartiality, and independence of the judiciary. If a judge does wish to respond to public criticism, they should consider enlisting the assistance of a third party.”
It continues:
“The canon applies to any judge, not just the one being criticized in connection with a judicial election or recall campaign. Because a judicial colleague would be subject to the same restrictions under the code as the judge who is being criticized, the committee recommends reaching out to an organization, entity, or individual with experience in these matters, such as a judicial association, bar association, trial or appellate lawyer association, or law school faculty.”
Committee Member Comments
San Diego Superior Court Judge Robert J. Trentacosta, a member of the 12-person committee, remarked that “the limits of the amendment have not been widely tested” and said:
“This opinion seeks to distill the dos and don’ts for judges faced with this decision of whether and how to respond to public criticism.”
The committee said that comments are due by Sept. 20 and can be emailed to Judicial.Ethics@jud.ca.gov, inputted through an online comment form, or sent by mail to Jody Vakili, Esq., 350 McAllister Street, San Francisco, CA 94102.
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