Metropolitan News-Enterprise
Feb. 25, 2000
Page 8

Los Angeles County Bar Assn. Asks Candidates To Adhere to 'Dead Letter' Guidelines

A letter signed by Los Angeles County Bar Assn. President Patricia M. Schnegg and by Barbara Yanow Johnson, chair of the County Bar's Fair Judicial Election Practices Committee, went out last month to each of the county's 27 judicial candidates. Schnegg and Johnson asked that the candidates adhere to the Guidelines for the Conduct of Campaigns for Judicial Office, a copy of which was enclosed, and solicited complaints of violations of the strictures.

One of those guidelines — F.1(b) — forbids judicial candidates to "publicly endorse a candidate for public office." This does not have the effect argued by attorney Vicki Roberts, an aspirant for election to the Los Angeles Municipal Court, of prohibiting candidates from accepting endorsements by judges. It does, however, purport to bar any candidate for a judicial office from endorsing any other candidate, including those running for judgeships.

Judicial candidates do, with regularity, endorse other judicial candidates — with the candidates and the County Bar apparently being oblivious to the fact that this contravenes a guideline.

It cannot reasonably be supposed that the County Bar truly seeks to deter conduct which the Code of Judicial Ethics — a binding and official code located in the appendix to the California Rules of Court — expressly permits. Canon 5(A) admonishes that "[j]udges and candidates for judicial office shall not" engage in certain political activity. Subparagraph (2) lists as among the proscribed activities "endorse or publicly oppose a candidate for nonjudicial office." By necessary implication, judges may endorse candidates for judicial office.

The Advisory Committee Commentary says so expressly: "Under this Canon, a judge may endorse another judicial candidate. Such endorsements are permitted because judicial officers have a special obligation to uphold the integrity and impartiality of the judiciary and are in a unique position to know the qualifications necessary to serve as a competent judicial officer."

The County Bar clearly did not set out to formulate do's and don'ts that conflicted with a state code that had official status. In 1980, when the County Bar promulgated its election guidelines, the Code of Judicial Ethics did not exist. What did exist was the Code of Judicial Conduct, adopted by the Conference of California Judges (now called the California Judges Assn.), a private, voluntary organization.

In 1975, the year the canons went into effect, the Supreme Court noted in two judicial disciplinary opinions that violations of the American Bar Assn. judicial canons had been cited in the 1973 decision removing Leland Geiler from office as a Los Angeles Municipal Court judge. It said in the 1975 rulings that the ABA canons "might usefully be consulted to give meaning to the [state] constitutional standards," signaling that the new unofficial state canons likewise could be consulted.

In one of those 1975 opinions — in which it yanked Los Angeles Municipal Court Judge Noel Cannon from office — the high court made clear that the canons did not have the force of law. It pointed out in a footnote: "We do not rely on the code in ascertaining violations thereof as grounds for disciplining petitioner; discipline is imposed pursuant to the constitutional provisions and rules in implementation thereof...."

So, as of 1980, there was no trace of audacity in the County Bar erecting a standard differing from that of another private group. A draft of the guidelines, prepared by a committee headed by Francis Wheat, the 1975-1976 County Bar president, had been widely circulated for comment before final adoption of the guidelines by the Board of Trustees.

The County Bar guideline on endorsements, as adopted in 1980, read precisely as it does now. The Conference of California Judges' Canon 7(A)(1) was nearly the same as the canon now appearing in the Code of Judicial Ethics; it read: "A judge or candidate for election to judicial office should not...(b)...publicly endorse a candidate for non-judicial office."

In 1989, the high court elevated the canons to near-mandatory status, declaring that "[w]hile the canons do not have the force of law or regulation," judges need to adhere to them to stay out of trouble. It proclaimed: "We...expect that all judges will comply with the canons."

In light of that, the County Bar clearly would have been off base had it kept in place any guideline authorizing what the California Judges Assn. code proscribed. On the other hand, for the County Bar to maintain a more restrictive guideline than another private organization had enacted was hardly subject to criticism.

This is especially so inasmuch as there were within the CJA itself at the time adherents to a notion that judicial endorsements should be barred. In 1990-91, the CJA worked on promulgating a new code patterned after the American Bar Assn.'s Model Code of Judicial Conduct. The CJA's proposed draft retained the rule that only nonjudicial endorsements were proscribed, but the commentary noted the other side: "However, to allow judges to publicly endorse no other political candidate but a judicial candidate might give the impression to the public that the judiciary is a closed network joining ranks against any outsiders wishing to enter it."

In 1992, the CJA adopted the new code; Rule 5(B) barred endorsements only of nonjudicial candidates.

Proposition 190 amended the California Constitution in 1995 to require that the Supreme Court promulgate a Code of Judicial Ethics Code which would include rules for "judicial candidates in the conduct of their campaigns." The high court adopted the CJA's code as a traditional measure, but proceeded to set up an advisory committee to revise the code. It asked the committee to consider whether all endorsements by judges should be barred. On Jan. 15, 1996, it gave Rule 5(B) "interim" status, pending receipt of the committee's study.

On April 12, 1996, the Administrative Office of the Courts announced the Supreme Court had adopted Rule 5(B) in its existing form. The AOC reported that there had been little enthusiasm expressed to the committee for prohibiting judges from expressing preferences in judicial elections. It said that "[g]iven the present system of elections and the potential for partisan endorsements...the committee concluded that the benefits of informing the electorate through focusing on the competence and integrity of judicial officers should prevail."

Also in 1996, there came proposed legislation by the Senate's chief crackpot, Quentin Kopp (now a San Mateo Superior Court judge), to bar appellate court justices from making endorsements in trial court races. His bill was killed in committee.

In 1997, the State Bar, acceding to the request of the Supreme Court, adopted a rule (Rule 1-700 of the Rules of Professional Conduct) which renders it a disciplinable offense for a lawyer, in seeking a judgeship, to violate provisions of Canon 5.

Accordingly, both judges and lawyers running for judicial office, while subject to discipline for endorsing non-judicial candidates, are permitted by the state rules to endorse in judicial elections. It does not seem reasonable to suppose that the County Bar intends to deliver to candidates the message: "Don't do what the state rules say you can dowe forbid it."


•The County Bar guidelines provide in Paragraph D.3: "A candidate for judicial office may speak to political gatherings only on his or her own behalf." When adopted, this was in accord with the canon. Now, however, it is contrary to Canon 5(C) which says: "Candidates for judicial office may speak to political gatherings only on their own behalf or on behalf of another candidate for judicial office."

•In Paragraph F.1(d), the guidelines bar a candidate from making "contributions to a political party or organization or to any candidate in a sum so large as to foster the appearance that the donor is seeking to gain some advantage or special favor." That's a rather vague standard. It clashes with the concrete standard set forth in Canon 5(A)(3) which declares that a judicial candidate may not "personally solicit funds for a political organization or nonjudicial candidate; or make contributions to a political party or political organization or to a nonjudicial candidate in excess of five hundred dollars in any calendar year per political party or political organization or candidate, or in excess of an aggregate of one thousand dollars in any calendar year for all political parties or political organizations or nonjudicial candidates." Theoretically, donation of a sum less than that expressly permitted by the canon could be said to run afoul of the guideline.

Despite these discrepancies, the County Bar continues to disseminate the guidelines, which warn that non-compliance may affect the candidate's rating by the Judicial Evaluation Committee and that there could be an announcement to the news media of a finding by the Fair Judicial Election Practices Committee of a violation.

As it happens, the latter panel has only on rare occasion commented publicly on a violation — and certainly never in connection with violations of the "dead letter" provisions I've just noted. As to the Judicial Evaluation Committee, its 1994 and 1996 chair, County Bar President-Elect Rex Heinke, says he has no recollection of the committee considering any suggestion that a candidate had breached the guidelines.

It could happen, however, that activity would be deterred on the part of some cautious candidate taking the guidelines to heart which the County Bar has no actual desire to block.

At the least, the guidelines should be updated to be in harmony with the Code of Judicial Ethics. It is doubtful, however, that the County Bar has any need for a separate set of guidelines. The Code of Judicial Ethics is in place, applies to both judges and lawyers, and, unlike the old CJA code, is not a set of standards promulgated by a private organization, but is adopted by the California Supreme Court and has the force of law.

There is no reason the County Bar should not make public comment on ethical violations by judicial candidates. But there is also no reason why it cannot comment on ethical violations of the code, rather than its own disparate standards.

On Monday, I'll discuss the refusal of attorney Mitchell Dawson to appear in candidate forums with his rivals in the race for the Beverly Hills Municipal Court, claiming he is compelled by Canon 5(B) to stay away. Does that canon have the sweeping effect of prohibiting participation in forums?

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