Monday, March 7, 2016
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Ethics Committee Warns Judges on Limits on Political Activity
By KENNETH OFGANG, Staff Writer
Judges and judicial candidates may attend political events featuring candidates for nonjudicial office, but have an affirmative duty to guard against the use of their names or judicial titles to advance the interests of such candidates, the Supreme Court Committee on Judicial Ethics Opinions said Friday.
In a formal opinion, the committee acknowledged that mere attendance at such events does not violate the Code of Judicial Ethics. But judges and candidates who do attend such gatherings, for purposes that may include promotion of their own judicial campaigns, are subject to a number of limitations on what they can do there, the committee said.
The CJEO cited Canon 5, which broadly prohibits judges from engaging in political activities that may create the appearance of political bias or impropriety. It also notes that judges specifically may not speak on behalf of a nonjudicial candidate or a political organization, and may not endorse or personally solicit funds for such a candidate or group.
“The text of canon 5 recognizes that judges do not surrender their rights as citizens but also places general and specific restrictions on the exercise of those rights,” the committee explained.
Appearance of Endorsement
The committee said judges must consider, before deciding to attend such an event, “whether their presence may create the appearance that they are endorsing or fundraising for a nonjudicial candidate or political organization.” Such an appearance may arise from the jurist being introduced, receiving an award, or being the guest of honor at the event, the committee said.
The committee noted that a judge once received an advisory letter from the Commission on Judicial Performance for giving the appearance of soliciting contributions from attorneys and their clients for the election campaign of a candidate for nonjudicial office.
Such an appearance, the committee went on to say, may arise if a judge is standing next to someone soliciting contributions from a small group of persons, causing a reasonable implication that the judge is part of the solicitation or is endorsing the candidate. On the other hand, the judge’s mere attendance at a large gathering might not give such an implication, “particularly if the judge does not wear a name badge or other insignia bearing his or her title.”
The committee warned, however, that even under that circumstance an appearance of impropriety might arise if, for example, the gathering is one at which the judge is likely to be well-known, such as if it is “full of prosecutors and public defenders.”
Speaking at Events
Judges may speak about legal issues at political events, “so long as the activity does not create the appearance of political bias and is otherwise consistent with the code,” the committee said. But even speaking on a permissible topic may create an appearance of impropriety, it warned, particularly if the event is a fundraiser or endorsement meeting involving candidates for nonjudicial office.
It cited the case of former Riverside Superior Court Judge Paul Zellerbach, who was publicly admonished in 2011 for speaking at a gathering about how policies adopted by then-District Attorney Rod Pacheco would impact the court. The commission said the comments appeared to be public opposition to the candidate, in violation of canon 5A(2).
The meeting took place in March 2009, at a time when Zellerbach was still a judge but was actively considering challenging Pacheco, the commission found. Zellerbach eventually became a candidate, defeated Pacheco, and was serving as district attorney at the time of the public admonishment.
He was defeated for reelection in 2014.
Affirmative Duty
The CJEO also said judges have an affirmative duty to make efforts to ensure their titles will not be used to promote political events, such as by discussing the issue with those in charge of the event and reviewing promotional materials.
While the code applies directly only to judges, State Bar rules extend their scope to attorneys running for judicial office. The State Bar Court last year publicly reproved attorney Clinton Parish of Sonora after finding that he behaved unethically when, as a candidate challenging an incumbent Yolo Superior Court judge in 2012, he accused his opponent of involvement in bribery and corporate fraud.
The Review Department found that this was a factual misrepresentation made with reckless disregard for the truth.
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