Ethics Rule Change Unmuzzles Judicial Candidates

• Pages: 8-8
• Date: 01 July 2021
• Author: Grant H. Hackley
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

udicial codes of et hics have

long prohibited judges from

publicly speaking about pend-

ing cases. Responding to “an

increase in attacks on judges’

judicial independence,” one state has

amended its j udicial code to permit

judges to comme nt about a decision

when criticism of it b ecomes the focus

of a judicial cam paign or recall elec-

tion. ABA Litigatio n Section leaders

believe the new provisio n strikes a

balance betwe en protecting a judge’s

First Amendm ent rights and the public

concern that a jud ge’s speech could

impact the outco me or fairness of a

pending proceeding.

Eective July 1 , 2020, the Supreme

Court of Cali fornia amended Canon

3B(9) of the Califor nia Code of Judicial

Ethics relating to imp artial discharge

of adjudicative duties. The amendment

permits a judg e to speak publicly

about a pending case, “provided

(a) the comment would not reaso nably

be expected to aec t the outcome or

impair the fair ness of the proceeding,

and (b) the comment is abo ut the pro-

cedural, factual, or legal basis of

a decision abo ut which a judge has

been criticized du ring the election

or recall campaign.”

The amendment permits a judge to

respond to attac ks on particular deci-

sions that becom e the focus of elec-

tions or recall c ampaigns—even if the

decision is mad e by another judge.

According to the Supre me Court of

California Advisory Committee on the

Code of Judici al Ethics’ Invitation to

Comment, "judges may be relucta nt to

issue controversial decisions because

they will be unable to d efend them-

selves if attacked w hile the matter is

pending.” The amendment also recog-

nizes the tension bet ween the ability

to speak publicly and the requirement

that judges prom ote public conf‌i-

dence in the integr ity and impartiality

of the judiciar y.

The amendment followed a proposal

Ethics Rule Change Unmuzzles

Judicial Candidates

by the Judicial Fairn ess Coalition of

the California J udges Association that

aimed to address i ssues relating to

judicial inde pendence and to allow the

public to “get a bette r understanding

of the legal issue s involved in a case

when a judge may pu blicly comment

on the procedura l or factual basis of

decisions issu ed in the course of the

judge’s ocial d uties." The proposal

was “[a]pparently prompted by the

recall in 2018 of J udge Aaron Persky.”

In 2016, Per sky sentenced Brock

Turner, the Stanford scholar-athl ete, to

six months in jail an d sex oender reg-

istration status af ter his conviction on

three counts of fel ony sexual assault

against an unconscious woman.

Prosecutors had s ought six years in

prison. The se ntence precipitated

Persky’s rec all election.

“I think there is a f undamen-

tal issue related to th ese changes

that warrants at le ast some discus-

sion, which is: d o we want judges

to be elected? ” posits Robert E.

Poundstone IV, Montg omery, AL,

cochair of the Sec tion’s Ethics &

Professionalism Committee. Indeed,

in 2015, the Bre nnan Center for

Justice at New York Univers ity School

of Law issued a review of so cial sci-

ence studies tha t found, without

exception, that the pre ssures of

upcoming judi cial and retention elec-

tions caused ju dges to be more puni-

tive toward criminal defe ndants.

“I think it is reaso nable to allow

judges to exercise the ir First

Amendment rights and respond to

criticisms used a gainst them in an

election,” a dds Poundstone. “But I do

not see how an attorn ey for a client

who felt a judge’s com ments sup-

ported the othe r side would have

any choice but to seek re cusal,” he

cautions. H e suggests a preemptive

approach may be be tter. “A detailed

opinion settin g forth the reasoning

for a decision, i nstead of a cursory

order, may be benef‌ici al in explaining

By Grant H. Hack ley, Litigation News Associa te Editor

a ruling so that an expl anation may

not be called for d uring a later judi-

cial campaign.”

“Plainly, the First Amendment

lurks over this matte r,” explains John

M. Barkett, M iami, FL, cochair of the

Section’s Ethics & P rofessionalism

Committee. “ There is a delicate bal-

ance that has bee n struck here.

Whether it is the rig ht balance

remains to be seen , should a chal-

lenge be broug ht by a judge who

wants to be able to say mor e.”

“The amendment has a number of

limitations that s hould give a judge

pause before speaking about a pend-

ing case, espe cially in an interview

context where follow- up questions can

be asked,” points out Barkett. Echoing

the advisory committee commentary

to the amended c anon, Barkett sug-

gests both the us e of surrogates and

careful scripti ng for judicial campaigns

facing b acklash over controve rsial rul-

ings to ensure that the amendments

are not violated. H owever, “if you want

to criticize the judge du ring a reelec-

tion campaign , know that the judge

may now respond.”

“Judges should tread ver y care-

fully,” counsels Poundstone. “This

amendment increases the possibil-

ity the case will re main in the public

discussion as ju dicial elections come

around.” He sug gests that litigators

be prepared. “A lawyer s hould have

a plan for if and how he o r she may

respond to inquiries,” Poundstone

recommends.

RESOURCE

Hon . Virginia M. Kendall , “Sua Sponte:

A judge comme nts on the diculty of

devising appr opriate sentences,” Liti g.

(Mar. 1, 2015).

8 | S ECTION OF LITIGATION

ETHICS STR UGGLES IN THE LEGAL WOR LD