Ethics Committee Warns Judges on Limits on Political Activity

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Metropolitan News-Enterprise


Monday, March 7,


Page 1


Ethics Committee Warns Judges on Limits on Political Activity


OFGANG, Staff Writer


Judges and
judicial candidates may attend political events featuring candidates for
nonjudicial office, but have an affirmative duty to guard against the use of
their names or judicial titles to advance the interests of such candidates, the
Supreme Court Committee on Judicial Ethics Opinions said Friday.

In a formal
opinion, the committee acknowledged that mere attendance at such events does
not violate the Code of Judicial Ethics. But judges and candidates who do
attend such gatherings, for purposes that may include promotion of their own
judicial campaigns, are subject to a number of limitations on what they can do
there, the committee said.

The CJEO cited
Canon 5, which broadly prohibits judges from engaging in political activities
that may create the appearance of political bias or impropriety. It also notes
that judges specifically may not speak on behalf of a nonjudicial candidate or
a political organization, and may not endorse or personally solicit funds for
such a candidate or group.

“The text of
canon 5 recognizes that judges do not surrender their rights as citizens but
also places general and specific restrictions on the exercise of those rights,”
the committee explained.

Appearance of

The committee
said judges must consider, before deciding to attend such an event, “whether
their presence may create the appearance that they are endorsing or fundraising
for a nonjudicial candidate or political organization.” Such an appearance may
arise from the jurist being introduced, receiving an award, or being the guest
of honor at the event, the committee said.

The committee
noted that a judge once received an advisory letter from the Commission on
Judicial Performance for giving the appearance of soliciting contributions from
attorneys and their clients for the election campaign of a candidate for
nonjudicial office.

Such an
appearance, the committee went on to say, may arise if a judge is standing next
to someone soliciting contributions from a small group of persons, causing a
reasonable implication that the judge is part of the solicitation or is
endorsing the candidate. On the other hand, the judge’s mere attendance at a
large gathering might not give such an implication, “particularly if the judge
does not wear a name badge or other insignia bearing his or her title.”

The committee
warned, however, that even under that circumstance an appearance of impropriety
might arise if, for example, the gathering is one at which the judge is likely
to be well-known, such as if it is “full of prosecutors and public defenders.”

Speaking at Events

Judges may speak
about legal issues at political events, “so long as the activity does not
create the appearance of political bias and is otherwise consistent with the
code,” the committee said. But even speaking on a permissible topic may create
an appearance of impropriety, it warned, particularly if the event is a
fundraiser or endorsement meeting involving candidates for nonjudicial office.

It cited the
case of former Riverside Superior Court Judge Paul Zellerbach, who was publicly
admonished in 2011 for speaking at a gathering about how policies adopted by
then-District Attorney Rod Pacheco would impact the court. The commission said
the comments appeared to be public opposition to the candidate, in violation of
canon 5A(2).

The meeting took
place in March 2009, at a time when Zellerbach was still a judge but was
actively considering challenging Pacheco, the commission found. Zellerbach
eventually became a candidate, defeated Pacheco, and was serving as district
attorney at the time of the public admonishment.

He was defeated
for reelection in 2014.

Affirmative Duty

The CJEO also
said judges have an affirmative duty to make efforts to ensure their titles
will not be used to promote political events, such as by discussing the issue
with those in charge of the event and reviewing promotional materials.

While the code
applies directly only to judges, State Bar rules extend their scope to
attorneys running for judicial office. The State Bar Court last year publicly
reproved attorney Clinton Parish of Sonora after finding that he behaved
unethically when, as a candidate challenging an incumbent Yolo Superior Court
judge in 2012, he accused his opponent of involvement in bribery and corporate

The Review
Department found that this was a factual misrepresentation made with reckless
disregard for the truth.


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