Tuesday, November 6, 2018
Presiding Justice Seeking Judges’ Support For Retention of Justices Raises Concerns
By a MetNews Staff Writer
There is no blanket prohibition on a Court of Appeal presiding justice soliciting support from the presiding judges of the superior courts within the appellate district for voter-retention of the justices, ad asking that urge backing by the judges of their courts according to an ethics opinion released yesterday, but a concern is expressed that rules would be violated in the process.
The California Supreme Court’s Committee on Judicial Ethics Opinions cited Canon 5B(4) of the Code of Judicial Ethics, which says:
“In judicial elections, judges may solicit campaign contributions or endorsements for their own campaigns or for other judges and attorneys who are candidates for judicial office. Judges are permitted to solicit such contributions and endorsements from anyone, including attorneys and other judges, except that a judge shall not solicit campaign contributions or endorsements from California state court commissioners, referees, court-appointed arbitrators, hearing officers, and retired judges serving in the Assigned Judges Program, or from California state court personnel. In soliciting campaign contributions or endorsements, a judge shall not use the prestige of judicial office in a manner that would reasonably be perceived as coercive.”
The opinion—which summarizes oral advice given to an unnamed presiding justice—notes that presiding justices “do not have influence or control over trial court judges in the manner that trial court judges may control subordinate judicial officers and court staff” and says there is no outright ban on seeking judges’ support in the retention election.
However, it cautions :
“Any judicial officer soliciting an endorsement must also consider the other two limitations on solicitation of campaign endorsements; whether the particular solicitation creates a perception of coercion and whether it could cause doubts regarding judicial independence- integrity, or impartiality. Both these concerns are heightened in the narrower question of whether a PJ may solicit campaign endorsements from trial court presiding judges in the PJ’s district especially where the solicitation also requests the presiding judges to solicit endorsements from other judges on the presiding judge’s court.”
In light of the presiding justice’s position, the opinion notes, the request for support would not be ignored, and most judges would be apt to oblige. If a judge proffering an endorsement had a case or cases under review, it adds, the public’s perception of impartiality on the part of that judge could be hampered.
The opinion goes on to observe:
“The proposed mass solicitation by the PJ to every trial court presiding judge to endorse the justices seeking retention with the additional request that the presiding judge solicit every trial court judge on the PJ’s behalf heightens the concerns of coercion and impartiality to a degree that is impermissible. Looking at the solicitation from the perspective of the solicited trial court judge or a reasonable person aware of the solicitation, the solicitation is from a presiding judge, the solicitation seeks an endorsement of every appellate court justice facing a retention election, and the solicitation originally came from the PJ on behalf of those justices.”
“Also, the solicitation asks for an endorsement of each justice seeking retention without evaluating a justice’s individual qualifications. The proposed mass solicitation uses the prestige of the PJ’s office in a manner that would reasonably be perceived as coercive and is prohibited by canon 5B(4). It would also result in an overall decrease in the perceptions of judicial independence, integrity, and impartiality.”
There are 17 member of this district’s Court of Appeal seeking retention in today’s election. They are Presiding Justices Arthur Gilbert, Elwood Lui, Nora M. Manella and Patricia A. Bigelow and Justices Anne H. Egerton, Carl H. Moor, Dorothy C. Kim, Gail R. Feuer, Halim Dhanidina, Helen Bendix, John L. Segal, Lamar W. Baker, Luis A. Lavin, Martin J. Tangemen, Thomas Willhite, Victoria G. Chaney, and Victoria M. Chavez.
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