CALIFORNIA CODE OF JUDICIAL ETHICS

CALIFORNIA CODE OF JUDICIAL ETHICS

Hon. Tom HollenhorstHon. Julie Conger

Hon. Dodie Harman

AMERICAN BAR ASSOCIATIONMODEL CODE OF

JUDICIAL CONDUCT

ABA MODEL CODEShort History of the Code

Initial Draft was 1924ABA undertook three major rewrites, 1990,

2003 and 2007.

States are free to accept or reject all or part of code.

ABA MODEL CODEShort History of the Code

Most differences in the code are because of differences in selection of judges, ie, appointment vs. elections.

Rewrites generally reflect changes in society, family structure and national issues.

Remaining Issue: Appellate Disqualification

JUDICIAL SPEECHCALIFORNIA CODE OF JUDICIAL ETHICS

Canon 1 – High Standards of Conduct

Canon 2 – Avoid Impropriety and Appearance of Impropriety

Canon 2A – Promote public confidence in integrity and impartiality

JUDICIAL SPEECH CALIFORNIA CODE OF JUDICIAL ETHICS

Canon 2B – No use of prestige of judicial office

Canon 3B(5) – No speech or gestures implying bias or prejudice

Canon 3B(7) – No ex parte communications

CALIFORNIA CODE OF JUDICIAL ETHICSCanon 3B(9) – No public comment on pending

or impending proceedings

Canon 3B(9) – No nonpublic comment that would substantially interfere with fair trial or hearing

Educational exception

CALIFORNIA CODE OF JUDICIAL ETHICS

Canon 4A(1) – No extrajudicial activity should cast doubt on impartiality or demean judicial office

Canon 4C – No appearance or consultation at public hearing or governmental body unless on matters concerning law, legal system or administration of justice or personal matters

JUDICIAL SPEECHCALIFORNIA CODE OF JUDICIAL ETHICSCanon 5A – No inappropriate political activity – no

speeches for political organizations or endorsements of nonjudicial candidates

Canon 5B – Judicial candidate shall not make statements to electorate or appointing authority that commit with respect to cases, controversies or issues that could come before courts

NEW CANON 2A – JUDICIAL SPEECHA judge shall not make statements, whether

public or nonpublic, that commit the judge with respect to cases, controversies, or issues that are likely to come before the courts or that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

NEW CANON 2A – JUDICIAL SPEECHCovers public AND nonpublic statements

No commitment on issues likely to be subject of litigation

OR

No statements inconsistent with impartiality

SOURCE OF CANON 2A ?CANON 5B

Applies only to conduct during election campaign

Audience: Electorate or Appointing Authority

SOURCE OF CANON 2A?ABA MODEL CODE OF JUDICIAL CONDUCT

Rule 2.10(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing

SOURCE OF CANON 2A ? ABA MODEL CODE OF JUDICIAL CONDUCT

Rule 2.10 (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

ABA MODEL CODE RULE 2.10(B)Prohibited statements only “in connection with

cases, controversies, or issues likely to come before the court”

“Inconsistent with impartiality” modifies the term “commitments” and does not apply to ALL statements

NEW COMMENTARY ON CANON 3B(9)Cautionary reminder of Canon 2A“Judges should be cautious when making (nonpublic

comments about pending or impending cases) that such a comment can be misheard, misinterpreted or repeated….(When making such a nonpublic comment) the judge must keep an open mind and not form an opinion prematurely or create the appearance of having formed an opinion prematurely.”

NEW CANON 3E(3)A judge is disqualified if the judge, while a

judge or candidate for judicial office, has made a statement, other than in a court proceeding, judicial decision, or opinion, that a person aware of the facts might reasonably believe commits the judge to reach a particular result or rule in a particular way in a proceeding.

CODE OF CIVIL PROCEDURE 170.2

It shall not be grounds for disqualification that the judge…..has in any capacity expressed a view on a legal or factual issue presented in the proceeding.

QUESTIONS

How to reconcile these two provisions?

Will this lead to more challenges under CCP 170.1?

Will these more stringent constraints upon judicial speech instigate increased attention by the Commission on Judicial Performance?

CHANGES TO CANON 3A judge shall perform the duties of judicial

office impartially, competently, and diligently.

CHANGES TO CANON 3What is “competence”?

AOC staff memo: “supports the principle that judges should engage in continuing education.”

CHANGES TO CANON 3Competence: requires the legal knowledge,

skill, thoroughness, and preparation reasonably necessary to perform judge’ responsibilities of judicial office

Canon 1: incorrect legal ruling is not itself a violation of this code

CHANGES TO CANON 3Proposed new CJP Rule 1.14:

Discipline shall not be imposed for mere legal error without more.

Exception added: clearly and convincingly reflects bad faith…or any purpose other than the faithful discharge of judicial duty is subject to investigation and discipline.

CHANGES TO CANON 3Oberholzer v. CJP (1999) 20Cal. 4th 371:

“critical inquiry is whether petitioner’s action clearly and convincingly reflected bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty.”

CHANGES TO CANON 3“Competent” requirement – directly relates to

continuing education standards.

Will this be “underlying misconduct” to justify investigation and discipline by the Commission?

CANON 3B(7)EX PARTE COMMUNICATIONS

No independent investigation of the facts

Consider only evidence presented or judicially noticed

All media, including electronic

Must make reasonable efforts to avoid ex parte communications


Adds language prohibiting communication with disqualified judge or one with appellate jurisdiction


Consultation with court personnel or others authorized by law:

Allowed “so long as the communication relates to that person’s duty to aid the judge in carrying out the judge’s adjudicative responsibilities.”


Court Personnel includes:

Bailiffs, court reporters, court externs

Research attorneys, courtroom clerks

Other employees of the court


Court personnel does not include:

Lawyers in a proceeding

Persons appointed by the court

Employees of government agencies, such as lawyers, social workers or representatives of probation department

CANON 3B(7)(b) and (c)Standardizes use of “initiate, permit or consider”

Authorizes ex parte communication when authorized to do so by stipulation of the parties

Eliminates “disinterested expert on the law” exception but Evidence Code 730 expert appointment permitted

NEW CANON 3B(7)(d)If judge receives ex parte communication:

Must promptly notify parties of substance

Provide opportunity to respond

CANON 3D(2)REPORTING RESPONSIBILITIES

Canon 3D(2) amended to read: J must take corrective action whenever a lawyer has committed misconduct or has violated the rules of Professional misconduct.


B and P sec. 6096.7 requires reporting attorney to state bar if there has been a modification or reversal based in whole or in part on misconduct, incompetent representation, or willful misrepresentation by an attorney.


Report to who? When? Record of Compliance (perhaps years later)

Difficulties for Appellate Justices, limited options for compliance, deterrence to identifying and labeling misconduct to avoid reporting, courts with huge calendars.

Canon 3D(2)REPORTING RESPONSIBILITIES

This change is consistent with the ABA Model Code requiring some corrective action be taken irrespective of whether the outcome of the case changed because of misconduct.

CANON 3D(2) REPORTING RESPONSIBILITIES

Commentary has changed : Now requires corrective action when there has been misconduct or violation of rules irrespective of change in disposition of case

Issues: Redundancy, chilling effect on making the initial determination, lapse of time since the incident occurred.

Documents

CALIFORNIA CODE OF JUDICIAL ETHICS