The California Supreme Court is weighing a new ethics rule that would permit the state’s judges to speak publicly on any court ruling if it becomes an issue in an election or recall campaign. The San Diego Union-Tribune explains:
The move to amend the Judicial Code of Ethics would allow any judge, not just the jurist involved in a campaign, to comment on “the procedural, factual or legal basis of a decision about which the judge has been criticized during the election or recall campaign,” according to a draft of the proposed rule.
Historically, judges don’t comment on pending cases out of concern it could show a bias to one side or the other, impair the rights to a fair trial or influence how a case develops. The current ethics rules ban judges, and their staff, from making any comment on pending cases.
The decision is spurred by last year’s ugly and successful campaign to recall state judge Aaron Persky, whose extraordinarily light sentence of admitted rapist Brock Turner galvanized a movement to remove him from the bench. Existing ethics rules prevented Persky–or any other judge–from speaking about his decision. If a new rule is implemented, it would go into effect on April 1.
I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.
The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.
Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.
The June recall of Judge Aaron Persky in California has led to the formation of a new group, dedicated to making it harder for politically motivated mobs to remove judges from the bench. The Daily Post reports:
San Joaquin County Superior Court Judge Barbara Kronlund, the co-chair of the newly launched Judicial Fairness Coalition, said the group wants to educate the public on the role of judges and look at amending state law to avoid future recalls over unpopular decisions.
“There should be a requirement of misconduct in office, either high crimes, misdemeanors, violating the Code of Judicial Ethics, hearing a case where you have a conflict,” Kronlund said. “It seems to me that makes a lot more sense than what we’ve got going on right now.”
Kronlund has been giving talks to Rotary and Kiwanis groups about the dangers of “baseless” attacks on judges since 2006, after Sacramento County Superior Court Judge Loren McMaster faced a recall threat from gay marriage opponents over his ruling in favor of same-sex domestic partnerships.
Los Angeles Superior Court Judge Paul Bacigalupo, co-chair of the new coalition and president of the California Judges Association, said he also wanted to look into changing the code of judicial conduct to loosen up the restrictions on judges talking about their cases.
That would allow judges to respond to criticism of their decisions, which Persky wasn’t able to do when opponents slammed him over the six-month jail sentence he gave to Stanford sex assailant Brock Turner.
As I have noted repeatedly, one can vehemently disagree with the leniency of the Turner sentence, and still conclude that the removal of Judge Persky was wholly irresponsible. That doesn’t mean that recall should be off the books entirely; if a judge repeatedly shows incompetence or indifference in applying the law or guaranteeing procedural fairness to all parties, a mechanism for removal may well be appropriate. It will be interesting to see how (and if) the Judicial Fairness Coalition works to address that balance.