On Tuesday, November 19, 2024, the California Supreme Court Committee on Judicial Ethics Opinions released new guidance aimed at helping judges navigate public criticism during election or recall campaigns. This 12-page advisory opinion provides a framework for judges wishing to respond to campaign-related attacks without violating judicial canons.
The guidance is a response to a 2020 amendment to Canon 3B(9) of the California Code of Judicial Ethics, which was implemented after the historic recall of Santa Clara County Superior Court Judge Aaron Persky in 2018. This amendment allows judges some latitude to comment on their own conduct or that of their colleagues when faced with public criticism during electoral processes.
Judge Robert Trentacosta, a member of the committee, emphasized that the amendment was introduced specifically in light of the circumstances surrounding Judge Persky’s recall and the increasing scrutiny faced by judges. Despite the amendment, he noted that few judges have utilized the flexibility it offers in the intervening years. The newly released opinion serves as a “road map” for judges considering public defense against criticism.
The committee’s final opinion largely mirrors a draft that was circulated for public comment in August. It clarifies that judges may speak out if their statements are unlikely to influence the outcome of ongoing proceedings and if they focus on the factual, procedural, or legal bases of the criticisms directed at them. Committee members highlighted the importance of judges being mindful of how their public statements—or even their silence—might shape public perception of the judiciary.
The finalized guidance also takes a more supportive stance towards judges defending themselves publicly than the earlier draft did. The initial version cautioned judges to approach public defense with “caution” in several sections. However, this warning has been removed in the final document, reflecting feedback from the public that the draft could dissuade judges from adequately defending their actions.
In a comment letter dated September 12, the California Judges Association articulated concerns that the preliminary language could hinder judges’ ability to respond effectively to criticisms. They argued that while bar associations can provide valuable information to the public, direct statements from judges or their judicial colleagues are more impactful and credible.
The 2020 amendment to Canon 3B(9) was approved by the California Supreme Court following the significant voter recall of Judge Persky, who was removed from office after a campaign criticized his sentencing of a Stanford University athlete convicted of sexual assault. His supporters claimed that ethical constraints prevented him from adequately defending his decisions during the recall efforts.
While the guidance issued by the Committee on Judicial Ethics Opinions is non-binding, it can be referenced in judicial discipline matters. This new framework aims to empower judges to address public concerns while remaining within the ethical boundaries set forth by the judicial system.
A copy of the original filing can be found here.
