DANA POINT, Calif. (CN) – Bound by a strict code of ethics, judges have long been barred from speaking publicly about pending cases, a constraint that could soon change in response to increasing attacks on judicial independence in an age of widespread social media vitriol.
The California Supreme Court is seeking public comment on a recently-proposed exception to the judicial ethics rules to allow judges to speak out if they are criticized about their decision in a case and are facing re-election or a recall campaign.
Whether judges should be allowed to publicly defend themselves in such fraught situations was a focal point of discussion Sunday morning at a meeting of the Alliance of California Judges in Dana Point.
Heather Rosing, a San Diego attorney with Klinedinst PC and outgoing president of the California Lawyers Association, said in a presentation entitled “Preserving Judicial Independence in Troubling Times” that bar associations “need to step up and educate on the independence of the judiciary and assist judges when they are subject to unfair attacks.”
Rosing, who has represented judges in proceedings before the state’s judicial disciplinary body the Commission on Judicial Performance, said inaccurate news reporting and the omnipresence of social media, along with a neglected civics education system, has contributed to a lack of understanding about the role of the third branch of government.
“This lack of information makes judges subject to attack,” she said. “Having spent the last couple of years in particular on judicial independence issues, we are indeed in troubling times and if we don’t take decisive action, it’s going to get worse.”
The CJP receives roughly 1,200 complaints about judges annually. Rosing said about 80% of these complaints come from people upset by the outcome of a case. She added that California has also seen an uptick in contested elections involving well-regarded incumbent judges with no ethics violations, and recall efforts over lawful decision-making.
The most infamous recent example of the latter is that of Santa Clara Superior Court Judge Aaron Persky, who was recalled in 2018 for sentencing convicted rapist Brock Turner to six months in jail, on the recommendation of the court’s probation department.
That the decision was well within the bounds of the law did not stop an enraged public from demanding his job.
Persky was also recently fired from his new gig as a high school tennis coach after a television station aired a report about it, a development Rosing called “horrific.”
“This is a sad situation we find ourselves in that we are talking about this,” said Judge Robert Bowers of Solano County, an Alliance director who presented alongside Rosing. “There are troubling times. You can look to it on a national level, the inability of the Executive to respect the judiciary and its independence.”
He added, “This is not necessarily a California problem, but this politicization of what we do, the attack literally on the rule of law, judges trying to be independent, following the rules and being threatened with their livelihood for making lawful decisions, this is where we’re going.”
Rosing said the CLA, a non-profit attorneys’ group founded in 2018 after the State Bar split up its attorney discipline and trade industry functions, supports the amendment to the ethical canon’s prohibition on public comments.
The amendment 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.”
The rule extends to judges commenting on cases where they have no involvement, allowing them to defend embattled colleagues both individually and collectively. In fact, the Judicial Fairness Coalition, a group of judges, attorneys and law school deans proposing the amendment, said a third-party’s defense might be preferable in some situations.
They suggest adding the following commentary to the canon: “The provision allowing a judge to make a public comment about a pending decision that is the subject of criticism during an election campaign applies to all judicial elections, including recall elections. Depending on the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the decision.”
Bowers called the rule change “a little something” to help judges defend themselves, though he said he doesn’t think it will make much difference.
“We’re talking about changing some canons to allow some folks to talk about things to people who won’t listen,” he said.
Some judges have expressed concern about the amendment’s breadth. Retired Judge Julie Conger, an expert in judicial ethics, said she agreed with the amendment in principle, but found it too problematic to allow judges to comment publicly on their colleagues’ decisions.
Conger, who did not attend the conference due to a prior obligation, was not able to comment Sunday afternoon, but referred Courthouse News to a letter she wrote to the Supreme Court’s judicial ethics advisory committee.
“This amendment would open the door to judges commenting on other judges’ decisions without full knowledge of the facts, circumstances and details underlying the controversial decision made in the case,” she wrote.
Conger added that the canon currently provides judges with a shield against media requests for comment on controversial cases.
“Removing this shield would put a judge privately dissenting from another judge’s controversial ruling in the position of having to duck the question, dissemble, or openly criticize a colleague; even a ‘no comment’ can be interpreted negatively,” she wrote.
“I understand Judge Conger’s position is that’s a bridge too far,” Bowers said. “When people want to ask me about certain opinions that happened in certain parts of the country, I always say, ‘I don’t know all the facts in that case. Not my case. Not my record. I can’t comment as a judge.’ ”
Bowers said he’s often asked if he would have sentenced Turner differently.
“If it’s a case of popular concern, everyone wants to know what would you have done,” he said. “I always get, ‘Would you have done something different?’ I’m a little concerned about this. We work within the rules we have.”
Speaking off the record, other judges said they were worried being pulled into fights on social media over their public comments, further contributing to an already caustic rhetorical climate. One judge called it an “ugly slippery slope,” adding, “to go down that road is really scary.”
While many judges said colleagues were “guaranteed to say something stupid,” some were adamant that they should nonetheless have the right to do so and argued that judges can always opt to ignore a reporter’s calls if they want to avoid controversy.
“I think it’s an interesting debate,” Rosing said. “If this amendment passes, judges should be prepared when approached by the press to say ‘no comment’ and I think that’s going to happen.”
But what’s most important, she added, is that the amendment allows judges to band together to support their colleagues. “I just love the idea of that,” she said.
The Alliance board later met privately to vote on whether to back the proposed amendment as written or adopt a stance in line with Conger’s. After closed door debate, the board emerged with a vote in favor of the current proposal.
“Any time judges are given an opportunity to have a First Amendment right, that should be embraced,” said Judge Maryanne Gilliard of Sacramento, an Alliance director. “Judges have been historically unable to make comments on virtually anything. This amendment gives judges some of the rights all Americans take for granted.”
She said the Alliance will be submitting a formal public comment. The comment period closes on Dec. 2.