The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) posted an updated draft opinion for public comment after considering a prior round of comments about whether, in a non-criminal matter, a judge may search the court’s electronic case management system (CMS) for information regarding a party, attorney, or facts relevant to the matter before the judge.
The new public comment period will run through Aug. 30.
CJEO Draft Formal Opinion 2021-016 discusses what case management systems are generally, and provides guidance on:
- permissible and impermissible CMS searches,
- permissible searches that produce improper information, and
- disqualification and disclosure considerations following inadvertent review of improper information.
The draft opinion recognizes judges are expected to and do use CMS searches to assist them in performing their judicial duties. The California Code of Judicial Ethics, however, prohibits the use of a CMS to independently investigate adjudicative facts unless the investigation is authorized by law or the information is the proper subject of judicial notice. The draft opinion advises judges to use a CMS with awareness that search results could include adjudicative information, and they should attempt to avoid reviewing adjudicative information unless it is legally authorized or judicially noticeable.
For judges who inadvertently review court records or other information that contain adjudicative facts as part of an otherwise permissible CMS search, the draft opinion advises them to consider whether:
- they are allowed by law or judicial notice to review the information,
- the information they viewed raises actual or reasonable doubt about impartiality, or
- they should disclose the CMS search and the information reviewed and provide the parties with an opportunity to respond.
We listened to the valuable public comments we received on our prior draft opinion about this subject and have substantially changed our approach with a new draft opinion. We look forward to comments on that deliberative work, including from those who commented before,” said CJEO chair Justice Ronald B. Robie of the Third District Court of Appeal.
The Supreme Court of California Committee on Judicial Ethics Opinions
350 McAllister Street
San Francisco, California 94102
All comments submitted to CJEO may be posted on CJEO’s website for public review unless clearly marked as confidential.
About the Committee on Judicial Ethics Opinions (CJEO)
The Committee on Judicial Ethics Opinions is a 12-member advisory committee that includes appellate justices, trial court judges and commissioners. The committee is appointed and authorized by the California Supreme Court, but its work is independent of the court, the Judicial Council, and all other entities. Its opinions are advisory and do not necessarily reflect the views of the California Supreme Court or any other entity.
The committee issues formal, informal, and expedited advisory opinions on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities. CJEO posts its opinions on the CJEO website for the benefit of the bench and the public.