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.