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Commission on Judicial Performance:
Judge’s Opposition to Renaming of School Was ‘Political’
Judicial Disciplinary Body Rejects Defense That Activity Is Protected by First Amendment
By a MetNews Staff Writer
The Commission on Judicial Performance yesterday issued a public admonishment to a judge based on his vocal opposition to the renaming of a high school, his alma mater, with its action reflecting an expansive view of the meaning of “political activity” and a narrow recognition of a jurist’s First Amendment right to speak on matters of community concern.
Among other things, the commission faulted the judge for a Facebook posting in which he did not identify himself as a judge but others, in commenting on what he wrote, did allude to his judicial status.
Receiving the public scolding is Sonoma Superior Court Judge James G. Bertoli who was elected to his post in 2000. Bertoli, in speeches, at protest rallies and elsewhere, in social media postings, and in communication to a local newspaper, opposed the renaming of Analy High School as “West County High School.”.
Now located in Sonoma County’s City of Sebastopol, the school was originally situated in Analy Township, which derived its name from Annaly, an ancient Irish realm. Eventually, Bertoli’s position prevailed.
‘Political Issue’
The commission said in a statement yesterday:
“The judge’s conduct involved public involvement on one side of an ongoing debate on a controversial social and political issue. That conduct violated the Code of Judicial Ethics and was not protected by the First Amendment. While Judge Bertoli was free to privately comment on an issue that he cares deeply about, his judicial position required his abstention from public political activity.
“In connection with his opposition to the change of the name of the high school, Judge Bertoli used Facebook accounts to make derogatory remarks about public officials, engage in rhetoric that inflamed the passions of the community, make profane remarks, and speak derisively about those who did not agree with him.”
Canon 5 Cited
In imposing discipline, the commission relied largely on Canon 5 of the Bartoli’s Code of Judicial Ethics which is summed up in this heading:
“A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.”
The text goes on to say:
“Judges and candidates for judicial office are entitled to entertain Judges and candidates for judicial office are entitled to entertain their personal views on political questions. They are not required to surrender their rights or opinions as citizens. They shall, however, not engage in political activity that may create the appearance of political bias or impropriety. Judicial independence, impartiality, and integrity shall dictate the conduct of judges and candidates for judicial office.”
A commentary cautions, in italics:
“The term ‘political activity’ should not be construed so narrowly as to prevent private comment.”
Rothman’s Handbook Quoted
The commission, in placing in the category of “political activity” Bertoli’s support of Analy High School retaining its name, quoted from the California Judicial Conduct Handbook authored by David Rothman, a retired Los Angeles Superior Court judge who died in 2024. It says that “[p]ublic involvement on either side in ongoing debates about controversial social and political issues is improper,” adding:
“Public involvement politicizes the judicial institution, demeans the judiciary, and impairs judicial independence and impartiality.”
Bertoli cited the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White. There, a canon of judicial conduct declared that a candidate for election to a judgeship shall not “announce his or her views on disputed legal or political issues.”
In an opinion for the 5-4 majority, Justice Antonin Scalia (now deceased) proclaimed that the canon violated the First Amendment.
The commission, rejecting Bertoli’s argument that as a sitting judge he is a candidate for reelection, declared the cited case to be inapposite, reasoning:
“Justice [Anthony] Kennedy, who cast the deciding vote, specifically noted that the case did ‘not present the question whether a State may restrict the speech of judges because they are judges—for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates.’… Whether a state could impose a “general speech restriction on sitting judges—regardless of whether they are campaigning—in order to promote the efficient administration of justice, is not an issue raised here.’ ” (Ibid.)
No Identification
Bertoli argued that in posting his views on social media, he did not identify himself as a judge, and was merely exercising his rights as a private citizen. The commission responded:
“ Judge Bertoli’s Facebook page was accessible to the public (or at least to anyone who created a Facebook account). He did not identify his title on Facebook, but commenters repeatedly referred to him as ‘judge’ and one thanked him for his ‘legal brain.’ ”
The decision and order continues:
“Moreover, on September 4, 2021, Judge Bertoli posted an email he sent to the editor-in-chief of The Press Democrat, in which he stated that an editorial was ‘without evidentiary support (pardon the use of the term; it is a professional habit).’ By invoking his office in the Facebook comment, Judge Bertoli also lent the prestige of judicial office to advance the pecuniary or personal interests of the judge or others, in violation of canon 2B(2) (duty not to lend the prestige of the judicial office or use the judicial title in any manner to advance the pecuniary interests of the judge or others).”
The commission also declared:
“Given the controversial nature of the renaming of the school, it was reasonable to expect that Judge Bertoli’s leadership role would gain media attention, and that his identity as a judge would likely be publicized (as it was). Judge Bertoli acknowledged that he is recognized in the community as a judge.”
Possible Federal Action
Bertoli was represented by James A. Murphy, a founding shareholder of the San Francisco law firm of Murphy, Pearson, Bradley & Feeney, P.C. He noted that his client, in opting for an informal hearing before the commission, waived his right of potential review by the California Supreme Court, but said that Bertoli “is considering pursuing relief in federal court.”
He commented:
“I think the decision to admonish Judge Bertoli for exercising his right to voice his opposition to a school name change and engage in social media exchanges without identifying himself as a judge is a major mistake that will have far ranging consequences for judges in California. If his next-door neighbor did the same thing, would someone claim the neighbor was engaged in political speech? Obviously not. I think this decision will have a chilling effect on the rights of other judges to engage in protected speech for fear of disciplinary action.”
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