CLA supported proposed amendments to the Code of Judicial Ethics, to allow a judge to comment publicly about a pending case that formed the basis of criticism of a judge during an election or recall campaign, provided the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding. CLA has worked closely with other interested stakeholders to address the increasing attacks on judges and judicial independence. These efforts have involved defense by third parties. The proposed amendments would provide judges with the option of defending themselves.
Proposed Amendments to Canon 3B(9) and Commentary of the Code of Judicial Ethics
November 27, 2019
Hon. Richard D. Fybel, Chair
Supreme Court Advisory Committee on the Code of Judicial Ethics
350 McAllister Street
San Francisco, CA 94102
Dear Justice Fybel:
The California Lawyers Association (CLA) is pleased to support the proposed amendments to canon 3B(9) of the Code of Judicial Ethics and its commentary, to allow a judge to comment publicly about a pending case that formed the basis of criticism of a judge during an election or recall campaign, provided the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding.
CLA has been directly involved with the issues raised by the proposed amendments. We have worked closely with the Judicial Fairness Coalition and other interested stakeholders to address the increasing attacks on judges and judicial independence, and have considered the most effective ways of dealing with these attacks, given the current inability of judges to respond in their own defense. Among other things, CLA has established a process so that CLA can effectively:
- Address errors in reporting and inaccurate or unjust criticism of judges, courts, the bar and/or the administration of justice;
- Be reasonably available to the news media as a resource for obtaining information concerning judicial activities, court process, or other technical or legal information about the administration of justice;
- Encourage broad dissemination of information to the public about noteworthy achievements and improvements within the legal system; and
- Promote a better understanding within the community of the legal system and the role of lawyers and judges.
CLA’s efforts, and the current efforts of other interested stakeholders, involve defense by third parties. We endorse the proposed amendment to the canon’s commentary, which provides that a judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning a decision. At the same time, we believe it is crucial that judges be provided with the option of defending themselves.
We agree with the Supreme Court Advisory Committee that “without the proposed exception and with the increasing popularity of recall elections, judges may be reluctant to issue controversial decisions because they will be unable to defend themselves if attacked while the matter is pending.” Ultimately, the public and the judicial system in general will benefit when a judge is permitted to address attacks directly, and provide comments about the procedural, factual, or legal basis of a decision about which a judge has been criticized. Finally, we believe the restrictions contained in the proposed amendment strike the proper balance.
We appreciate the opportunity to submit these comments.
Emilio Varanini, President
California Lawyers Association