SAN FRANCISCO (CN) – Judges up and down the state are shaking their heads over a draft opinion from California’s judicial ethics committee that would limit what judges can say.
The opposition to the ethics opinion has to do with the tension between trial judges and a big bureaucracy that sits atop the far-flung California judicial system, as well as the financial pressure on individual trial courts resulting from enormous budget cuts.
Specifically, judges and lawyers are alarmed over a section of the ethics opinion that urges judges to avoid asking lawyers to lobby the Legislature for solutions that would favor one court over another — for example, by taking funds out of one court’s construction project to keep courtrooms operating somewhere else.
The draft opinion from the California Committee on Judicial Ethics Opinions reads: “The committee cautions that judges should be wary of inviting lawyers to seek particular results that benefit the judge’s court to the detriment of other courts. For example, a judge should avoid requesting that an attorney ask a legislator to move courthouse construction funds to general trial court operations.”
Consistent with this year’s mantra from the upper crust of the California court system — “speak with one voice” — the draft ethics opinion suggested, on the other hand, that it would be OK to invite lawyers to “advocate on behalf of the entire judicial branch.”
That section provoked a fiery response from judges in trial courts large and small, from Los Angeles to Vallejo, from Sacramento to Mendocino.
“As locally elected officials, judges meet with our locally elected legislators to discuss the impact of budget cuts on our local courts and our shared constituency,” wrote Presiding Judge Laurie Earl of Sacramento on behalf of California’s 58 presiding judges.
“It seems inimical to the responsibility of superior court judges to be restricted in our ability to protect our courts and our communities and to prohibit us from asking attorneys to speak to our legislators about matters of local concern,” she wrote.
Writing for the Los Angeles County Superior Court, Presiding Judge Lee Edmon said the section curbs free speech.
“The Committee provides no analysis as to the propriety of such a vast, content-based restriction. The implicit threat of action by the Commission on Judicial Performance against a judge for offensive speech, by which an individual judge expresses his sincere views as to what funding best preserves access to justice, is chilling,” wrote Edmon.
Representing the biggest trial court in the nation, Edmon added, “The incorrect discussion of the role of the Judicial Council and the independent role of trial courts in the Draft Opinion lead to the unwarranted conclusion that trial courts may not advocate positions for funding that may disadvantage other trial courts or the Administrative Office of the Courts.”
Edmon’s comment underscores the long-running tension between the local trial courts and the centralized bureaucracy of the Administrative Office of the Courts which operates under the auspices of the Judicial Council, and has in recent years taken heavy criticism for overreaching its authority, wasting public funds, and interfering with how the courts are run.
For many trial judges, the threat of disciplinary action also calls to mind the tenure of former chief justice Ronald George who was said to have used judicial ethics proceedings to control trial judges and keep them in line.
An attorney who sits on the Judicial Council, Edith Matthai, echoed Edmon’s blast, saying, “If discipline were sought against a judge on the basis that meetings with counsel resulted in advocacy lawyers that aided a particular court, it would be viewed by many as a political use of the disciplinary system; that perception is detrimental to all.”
Judge Dan Healy in Solano County delivered his criticism from both a personal viewpoint and that of a community devastated by the state’s economic downturn.
“I am a judicial officer in my hometown of Vallejo, a community ravaged by overwhelming conditions that keep our community on the brink of collapse,” he wrote. “Struggle as we might, our court and other community resources cannot come close to meeting the minimum needs of our community.”
“I was elected (expressly campaigning on the need for people to support the courts) by the people of this community, and it is to them, and to the Constitution and the laws of this State, to which I owe my allegiance,” he continued. “If forced to choose between those commitments — which mandate me to fight for more resources for our community — and a morally and intellectually flawed judicial ethics bureaucracy, I choose the former.”
Writing from rural Mendocino County, Retired Judge James Luther recounted how the county’s presiding judge and six other judges “drove 60 miles through heavy rain and dangerous winds over treacherous mountain roads” to meet with more than 300 colleagues and urge them to work with a group of attorneys to save one of Mendocino’s regional courts.
“Your draft formal opinion 2012-0001 would call what they did unethical,” he told the committee. “Please withdraw it. Please stop hurting and start helping.”
On behalf of the largest judges group in the state, the California Judges Association, Judge Allan Hardcastle of Sonoma County said the committee has no authority under the canons of judicial ethics to tell judges to side with the judiciary over individual courts.
“There is nothing wrong with a judge in County B asking the attorney to support the transfer of construction funds to general trial court operations so long as the request complies with the other concerns addressed in the Opinion. If an attorney feels that it is more important that County A get a new courthouse, than County B closing courtrooms, that attorney is free to advocate for that position, instead,” Hardcastle wrote. “To suggest that any judge who advocated for the use of court construction funds to maintain court operations was violating the rules of ethics, and as such would be subject to discipline, is very disturbing.”
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