Monday, May 10, 2004
Page 3
Accused Judge Defends Appearances on Public Television Program
By a MetNews Staff Writer
A judge accused last week of ethics violations on Friday defended his appearances on a public television program, and a noted constitutional scholar said a canon the jurist is accused of violating may go too far in limiting judges’ free speech rights.
Judge Kevin A. Ross said his frequent appearances on KCET’s “Life and Times Tonight” were intended to benefit the public by informing it about legal issues. The state’s Commission on Judicial Performance on Thursday cited four of the appearances as violating Canon 3B(9) of the Code of Judicial Ethics, which says that a judge shall not “make any public comment about a pending or impending proceeding in any court.”
Ross said he hopes the charges against him will help to clarify how far judges can go in discussing legal matters of current public interest. But he said he also feared they might discourage judges from reaching out to the public.
“My biggest concern is that judges upon seeing this are not scared off to go outside of the courtroom and serve as public officials in educating individuals about the judiciary and our branch of government,” Ross declared.
In three of the television appearances cited by the CJP, Ross discussed legal issues involved in high-profile cases in which he was not personally involved. In the fourth, he talked about a juvenile offender who had recently appeared before him.
Ross said it had not occurred to him to challenge the authority of the CJP to enforce Canon 3B(9) on constitutional grounds.
“I will defer to the commission, because I respect you as an entity,” he commented.
But USC law professor Erwin Chemerinsky said he questions the constitutionality of an ethical canon which bars judges from speaking publicly in general terms about the legal issues involved in pending cases where there is no “likelihood of prejudicing the outcome of the case.”
Chemerinsky noted he authored a law review article on the topic which appeared in the Loyola Law Review, and he cited the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, 536 U.S. 765. The White court, by a 5-4 margin, ruled that states cannot bar candidates for judicial office from announcing their views on “disputed legal or political issues.”
He commented:
“If you can’t punish a judge for taking a position on a disputed issue, how can you punish him for talking about the law generally?”
Chemerinsky noted he appeared with Ross on “Life and Times Tonight” on “two or three” occasions. Ross did not during those appearances discuss any specific cases, the professor said.
Ross pointed out that several of his colleagues, generally at his invitation, have appeared with him on the KCET program. They included Judges Victor E. Chavez, Jacqueline Connor, and Michael Nash, he said.
He said the court also chose him, because of his outreach activities, to present the material on dealing with the media included on the training CD-ROM provided to the court’s new judges.
Before agreeing to appear on the program, Ross said, he called the ethics hotline operated by the California Judges Association. He was advised that since the program was noncommercial and he was not being compensated for appearing on it, it was the type of community outreach appropriate for a judicial officer, he asserted.
In the past, Ross said, he has received only positive feedback about the appearances from colleagues and members of the public. He stopped appearing on the program when he learned of the CJP inquiry and will not appear again until the charges are resolved, he said.
Turning to the charges brought by the CJP which involved his conduct while on the bench, Ross said he plans to provide some additional information to the commission which will places those episodes in “context.”
The CJP alleges that on four occasions Ross treated criminal defendants or their lawyers inappropriately, abandoning his role as a neutral arbiter and becoming “embroiled” in the controversies he was supposed to be adjudicating.
The judge conceded that the CJP’s actions regarding those matters were “reasonable in light of the facts that they are aware of at this time,” adding:
“I’ll have to look them at from a standpoint of seeing if my conduct or my actions were in any way out of line and inappropriate and will be prepared to accept responsibility should that turn out to be the findings from CJP.”
Copyright 2004, Metropolitan News Company