Tuesday, December 18, 2012
Judges Critical of Committee Draft Opinion on Budget Advocacy
Los Angeles Superior Court, CJA Raise Free-Speech Concerns
By JACKIE FUCHS, Staff Writer
A Committee on Judicial Ethics Opinions draft opinion on the manner in which judges may ask attorneys for assistance in advocating against potential budget cuts is drawing fire from judges.
Comments on CJEO Draft Formal Opinion 2012-001 were due Dec. 19, and a host of judges and courts weighed in with criticisms over guidelines deemed restrictive and confusing.
The California Judges Association and the Los Angeles Superior Court were among the critics.
The committee, formed by the California Supreme Court in 2007 to provide independent advisory opinions on judicial ethics, sought to address itself to the question of whether a judge may “invite partners of law firms in the county to attend a meeting at which the judge makes a presentation concerning potential budgets cuts and ask that the attorneys help the court in whatever way they believe is appropriate,” and whether a judge may “at the same meeting ask attorneys to write or meet with legislators in Sacramento on the court’s behalf.”
The committee said that while the Code of Judicial Ethics does not prohibit judges from asking attorneys to “help the court,” any solicitation for such help is “fraught with the possibility that the attorneys will believe they will be disadvantaged if they do not provide assistance or will gain special favor or influence by providing assistance.”
To address the problem, the committee said that invitations should not be limited to a “select few”, and a judge may not ask attorneys to help in “whatever way they believe is appropriate,” as such a request may be “too broad, may imply or invite too much, and potentially crosses the line of what is permissible.”
Judges may, however, according to the draft opinion, ask attorneys to write letters or meet with legislators, provided that the judge ensures “that the attorneys’ actions are voluntary.”
The committee recommended that judge’s invitations to presentations not be limited to partners of law firms, saying that “the narrower the list of invitees, the more likely the appearance that those attending are in a special position to influence the judge.” In certain circumstances, the committee said, such as where the invited attorneys are friends of the judge, it would be better for judges not to call such a meeting at all than to risk actual or perceived coercion.
‘Vague and Overly Broad’
The Los Angeles Superior Court criticized the guidelines as “vague and overly broad” and said they would lead to “unintended consequences.”
The court found particular fault with the committee’s suggestion that judges should be wary of inviting lawyers to seek particular results that benefit the judge’s court to the detriment of other courts, such as requesting that an attorney ask a legislator to move courthouse construction funds to general trial court operations.
The court said that such a restriction had “no basis in the cannons of judicial ethics” and “should be eliminated to avoid potential First Amendment issues” and “to avoid the implication that judges cannot express their views about what they believe to be in the best interests of the court system.”
The court’s comments were drafted by a working group chaired by Los Angeles Superior Court Judge Anthony Mohr. The group was made up of 10 judges plus Court Counsel Fred Bennett, and its recommendations were adopted by the court as a whole.
The California Judges Association shared many of the same views, saying that “the opinion contains language that goes beyond what is necessary to answer the question presented and which could be interpreted as restricting the conduct of judges advocating for their courts beyond what is warranted by the Canons.” Like the Los Angeles court and a number of individual judges, the CJA took issue with the suggestion that judges “can only take positions that inure to the benefit of all the courts in the State. The Opinion offers no authority to support this assertion and we are not aware of any such authority.”
The CJA also expressed concern over the requirement that judges “ensure” that attorneys’ actions are voluntary and don’t arise out of a feeling of compulsion or expectation of favoritism. While agreeing that such a requirement expressed an important principle, it said that the opinion offered no guidance as to how a judge was to do so.
“Presumably,” the CJA said, “the CJEO does not want to create new duties on judges to follow up on attorneys’ outside activities. The Opinion should take care to make clear that judges do not have any obligation to monitor the activities of lawyers outside the courtroom context.”
Full texts of the Draft Formal Opinion and the comments received can be found on the state courts’ website.
Copyright 2012, Metropolitan News Company