Draft Opinion Cautions Against Use Of CMS for Judges’ Investigations

Friday, April 5, 2019

Page 1

Draft Opinion Cautions Against Use Of CMS for Judges’ Investigations

By a MetNews Staff Writer

The California Supreme Court Committee on Judicial Ethics Committee yesterday said it is seeking public input on its tentative formal opinion which declares that a judge should generally avoid searching the court case management system for information about a party or an attorney or facts relating to a case before the judicial officer.

The draft opinion points to Canon 3B(7) which provides, in part:

“Unless otherwise authorized by law, a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed. This prohibition extends to information available in all media, including electronic.”

The opinion says that while searching for matter that would be subject to judicial notice is expressly permitted, searching the case management system (“CMS”) might, even for that purpose, be unwise. It advises:

“Even if a CMS search is permitted, the committee cautions against searching the CMS based on the likelihood that a judge may uncover other information that is not properly subject to judicial notice. If so, the committee advises that the judge should disclose the fact of the search and the results of the search, and provide the parties with an opportunity to respond. Finally, regardless of whether the search complies with the canon 3B(7) of the California Code of Judicial Ethics, the committee cautions that the fact that a judge engaged in an independent investigation could cause a person to reasonably doubt the judge’s impartiality in the matter, particularly where the results of the search provide a benefit to one party.”

Comments are sought by May 10.

A copy of the full draft opinion and a comment form can be accessed on the Judicial Council website under the tab, “News & Reference,” by clicking on the link, “Newsroom.”