Friday, October 3, 2014
Ethics Committee Warns Judges on Legislative Advocacy
By a MetNews Staff Writer
Judges may testify at legislative hearings, as long as they do so from a judicial perspective and not as advocates for a point of view based on external experiences or beliefs, the Committee on Judicial Ethics Opinions said yesterday.
The committee said it was issuing the opinion in response to requests for clarification as to when a judge may avail himself or herself of an exception to the general prohibition against legislative testimony. Canon 4C(1) of the California Code of Judicial Ethics provides that “[a] judge shall not appear at a public hearing or officially consult with an executive or legislative body or public official except on matters concerning the law, the legal system, or the administration of justice.”
There was a specific inquiry, the committee explained, as to “whether a judge may appear at a public hearing to advocate for shorter or longer sentences for drug offenders, or whether such an appearance would be permissible if, instead of advocating for specific legislation or sentences for particular offenders, the judge explained to the public body, from a judicial perspective, the effects of any of these proposed laws. “
The committee was also asked whether a judge could testify with regard to proposals to eliminate the death penalty or to change collective bargaining laws.
Testimony on those issues would be allowed, the committee said, as long as the testimony was focused on the impact of those changes on the courts, and not on the judges’ personal philosophies or their perspectives as former lawyers.
“While all judges have experience and legal knowledge acquired as attorneys prior to taking the bench, that experience is usually the result of representing particular groups or clients, the committee explained. “But law practice experience is not unique to judges and attorneys are able to provide the Legislature and the public with advocacy and knowledge of the law from an advocate’s perspective. A judge is permitted to be an advocate only on behalf of the legal system—focusing on court users, the courts, or the administration of justice.”
With respect to the death penalty, for example, it would be proper for a judge to “comment…on the dysfunction of the present system from a judicial perspective,” but not to testify as to whether the death penalty is sound as a matter of morality or policy.
By way of further example, the committee said, if a bill to change environmental regulations is being considered, a judge may testify as to how the law would affect judicial review, but not as to how it would affect the environment.
“[T]he committee views canon 4C(1) as containing an inherent limitation; that limitation is to preclude judges from telling the legislative or executive branches, in a public hearing or official context, the judiciary’s (or judge’s) views as to whether a law or proposed law is good or bad social or economic or scientific policy, which is akin to the prohibition on political activity,” the opinion says. “Limiting judicial comment to the judicial perspective promotes the public’s trust in impartiality by avoiding the use of judicial title to insert a judge’s views on economics, science, social policy, or morality into the official public discourse on legislation.”
But in exercising the limited right to testify under canon 4C(1), the committee cautioned, a judge must be careful to avoid violating other canons, even when the issue at hand is facially one of “the law, the legal system, or the administration of justice.”
For example, the committee said, a judge’s testimony on a proposal to change drug sentencing laws would appear permissible under canon 4C(1), “however, advocacy for longer sentences for only a particular type of offender could undermine public confidence in the impartiality of the judge with respect to such cases” and thus violate other parts of the code.
A judge might, however, “advocate for statewide use of alternative programs based on the judge’s experience without commenting on the outcome of cases involving particular offenders, and without implying that the judge will be ruling in a particular way in a class of cases,” the committee said.
The advisory is CJEO Formal Opinion No. 2014-006 and can be found on the committee’s website judicialethicsopinions.ca.gov.
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