SAN FRANCISCO (CN) — Under changes to the code of judicial ethics released by the California Supreme Court on Monday, judges will be allowed to comment publicly about colleagues’ decisions and respond to criticism of their own rulings during a re-election or recall campaign.
The amended canon reads: “In connection with a judicial election or recall campaign, this canon does not prohibit a 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.”
Judges have long been barred by the ethics canon from speaking out about pending cases, but beliefs have shifted in recent years in response to heightened public outcry over controversial rulings in high-publicity cases.
One of the most notorious current examples is the successful 2018 recall campaign against Santa Clara County Judge Aaron Persky after he imposed a rather light sentence on a man convicted of sexual assault, a decision he based on applicable statutes and a recommendation from the California Department of Probation.
The rule change was first proposed in 2018 by the Judicial Fairness Coalition, a group launched by the California Judges Association, that includes active and retired justices and judges, lawyers, law school deans, and professors concerned about the criticism and attacks against judges and how they decide cases.
“One of our very first objectives was to have this rule changed. Attacks on judges that go unanswered erodes the public’s trust in the rule of law and their confidence in a fair and just judicial system,” said former association President Judge Paul Bacigalupo of Los Angeles during a phone interview Monday. He is a co-founding chair of the Judicial Fairness Coalition along with Judge Barbara Kronlund of San Joaquin County Superior Court.
The coalition pitched it to the Supreme Court’s Advisory Committee on the Code of Judicial Ethics, which recommended it to the high court for approval. The court took public comment for two months before making its final decision.
“Voters will be able to receive and evaluate all information before casting their ballots in judicial elections, including recalls,” said Justice Richard Fybel, chair of the Advisory Committee, in a statement. “They will be able to hear a judge defend a ruling when that ruling is at issue. The amendments permit a more open and fair exchange of all views at a time when contested judicial elections and recalls have become more common.”
The amendment has support from the legal community, including the California Lawyers Association.
“CLA believes the rule change strikes the right balance in giving judges more freedom to comment in cases where they deem it appropriate or necessary,” said Ona Alston Dosunmu, CLA chief executive and executive director. “Given the modern media landscape, this helps even the playing field.”
Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, said in an email: “I think this is a desirable change in the law.”
“I think when a judge is attacked, he or she should have the chance to reply. No judge will be required to do so. My basic premise is that more speech is a good thing and this will facilitate that,” Chemerinsky said.
While the rule is broad and extends to judges commenting on cases where they are not involved, it has its limitations.
Comments must be on the procedural, factual, and legal basis of a decision about which a judge has been criticized during an election or recall campaign. The comment must also not be expected to affect the outcome of a pending case.
A judge may also consider whether a third party should make a statement on their behalf.
“If an individual is uncomfortable in responding that individual can decline to do so,” Bacigalupo said. “A judge should be cautious when making any such comments. There’s always a risk that a comment can be misheard, misinterpreted or repeated. Ultimately whatever a judge says, a judge has to be mindful and always promote public confidence in the integrity of the judiciary.”
The high court also approved a spate of additional updates to the ethics canon, including barring judges from commenting, recommending, or criticizing a business on sites like Facebook or Yelp if it’s likely they’ll be identified as a judge, and prohibits them from using public resources for campaign activities.
Other changes allow judges to publicly oppose a judicial candidate, fundraise from retired judges, and act as a healthcare representative for someone with whom they have a pre-existing relationship.
All amendments take effect on July 1.