Judges Responding to Criticism: An Amendment to the California Code of Judicial Ethics

A recent amendment to the California Code of Judicial Ethics paves the way for a judge, who is  running for reelection or defending a recall campaign, to respond to criticism about his or her decisions. Judges

Effective July 1^st, the amendment addresses situations such as the recall campaign directed against Judge Persky after he sentenced Brock Turner, a Stanford swimmer who was found guilty of three counts of felony sexual assault in 2016. The six-month sentence with three years of probation was deemed to be “light” by an outraged group of individuals who launched the recall campaign. The Judicial Canons prohibited Judge Persky from responding to the criticism.

California’s Cannon 3(B)(9) outlines what judges may or may not comment on in order to maintain impartiality. The Cannon maintains the rights of judges to make statements “in the course of their official duties,” explain court procedures, and make statements in “proceedings in which the judge is a litigant in a personal capacity.” Also preserved is a judge’s prerogative to discuss, “in legal education programs and materials, cases and issues pending in appellate courts” subject to some limitations.

The amendment maintains the general prohibition against public comments about pending or impending proceedings in any court, and any nonpublic comment that might substantially interfere with a fair trial or hearing; however, it adds an import exception:

As of July 1^st, judges are permitted to make public comments about pending proceedings, provided that the comments

• Would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and
• Are about the procedural, factual or legal basis of a decision about which a judge has been criticized during the election or recall campaign.

The advisory commentary suggests that a judge may want to consider whether it would be preferable to have a third party respond to criticism directed at one of the judge’s decision.

Read the official text of the amendment, along with the Advisory Committee Commentary, here.