The Supreme Court of California adopted a slate of changes to the California Code of Judicial Ethics (order) which include allowing judges to speak publicly about a pending case if they are criticized for a ruling during an election or recall campaign.
The amendments, which go into effect July 1, were open for public comment over two months beginning last October and are based on the recommendations of the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics.
The court approved updates to judicial ethics canons and commentary in several areas, including the following:
• Public comment on pending case during election campaign. A judge may comment publicly about a pending case when that case is used as criticism of a judge during a judicial election or recall campaign, but only if the public comment would not reasonably be expected to affect the outcome or impair the proceeding’s fairness. Judges had been prohibited from making any public comment about a pending case.
“Voters will be able to receive and evaluate all information before casting their ballots in judicial elections, including recalls,” said Justice Richard D. Fybel, chair of the Advisory Committee on the Code of Judicial Ethics.
“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,” Justice Fybel said.
The rule garnered support from the California Judges Association, the California Lawyers Association, and the Judicial Fairness Coalition.
• Posting material on the Internet. A judge may not comment on, recommend, or criticize a business, product, or service on social networking sites if it is reasonably likely the judge can be identified as a judge.
• Fundraising from retired judges. Allows a judge to fundraise from retired judges who are not serving in the Temporary Assigned Judges Program, practicing law, or providing alternative dispute resolution services.
• Fiduciary activities. Allows a judge to act as a health care representative for a person whose preexisting relationship with the judge would prevent the judge from hearing a case involving that person. Previously, judges could only act as a fiduciary for family members.
• Opposing candidates for judicial office. Allows a judge to publicly oppose a judicial candidate. Judges are currently prohibited from publicly endorsing or opposing a candidate for nonjudicial office. However, a judge could previously endorse a judicial candidate publicly.
• Conduct during judicial campaigns. Adds to commentary on solicitation of campaign funds and endorsements in judicial elections, referencing Government Code section 8314. That statute prohibits elected officials from using public resources, including buildings, telephones, and state-compensated time, for a campaign activity.
The core tenets of the Code of Judicial Ethics are to promote public trust and confidence in the judiciary, to ensure the integrity and impartiality of the judiciary, and to provide rules for California’s judicial officers and candidates for judicial office as they serve on the bench or stand for election.