Tuesday, December 23, 2003
State High Court Alters Rule on Campaign Statements In Response to U.S. Supreme Court Decision
By a MetNews Staff Writer
California judicial candidates are no longer precluded from making statements that “appear to commit the candidate with respect to cases, controversies, or issues that could come before the courts,” under new rules announced yesterday by the state Supreme Court.
Another change to Canon 5B of the Code of Judicial Ethics will subject candidates to discipline if they make false campaign statements in reckless disregard of the truth.
In a statement, the court said the new rule was among several adopted at last week’s administrative conference, and was made in response to Republican Party of Minnesota v. White (2002) 536 U.S. 765.
The White court, citing the First Amendment, struck down a Minnesota rule prohibiting a judicial candidate from “announcing his or her views on disputed legal or political issues.”
The new California rule was recommended by the Supreme Court Advisory Committee on the Code of Judicial Ethics, chaired by Administrative Presiding Justice Charles S. Vogel of this district’s Court of Appeal.
The advisory committee’s comment noted that while California has no counterpart to the Minnesota “announcing” rule, the ban on making statements that “appear to commit” a candidate to a position on a legal issue might be viewed as “overinclusive.”
In accordance with the committee’s recommendation, however, the high court retained the portion of the rule that prohibits a judicial candidate from actually committing to a position on an issue that is likely to come before the courts. A similar Minnesota rule was challenged in White, but the high court never reached the issue.
The “reckless disregard” amendment broadens the circumstances under which a candidate faces sanction if he or she makes false charges about an opponent. The prior rule applied only to knowing misstatements.
With the amendments, Canon 5B now reads:
“A candidate for election or appointment to judicial office shall not (1) make statements to the electorate or the appointing authority that commit the candidate with respect to cases, controversies, or issues that could come before the courts, or (2) knowingly, or with reckless disregard for the truth, misrepresent the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent.”
While the Code of Judicial Ethics applies only to judges, a 1997 rule gives the State Bar of California jurisdiction to investigate and discipline attorneys running for judge who engage in conduct which violates the code’s prohibitions on false and deceptive campaigning.
The high court also approved amendments on two other subjects.
•Canon 3E(4), a newly adopted provision, sets forth a judicial officer’s duty to disqualify himself or herself from hearing a case, based upon ownership of bonds issued by a corporation that is a party. The new canon requires disqualification if the judicial officer owns a bond valued in excess of $1,500 and the outcome of the proceeding involved could substantially affect the value of the judge’s bond.
•Two new provisions strengthen the prohibition against sexual harassment.
Canon 3B(5), requiring a judge to perform judicial duties without bias or prejudice, was amended to add a specific requirement that a judge refrain from engaging “in speech, gestures, or other conduct that would reasonably be perceived as sexual harassment.”
New Canon 3C(5) expressly prohibits the same conduct by a judge in the performance of administrative duties.
Copyright 2003, Metropolitan News Company