Ethics Rule Change Unmuzzles Judicial Candidates

Judicial codes of ethics have long prohibited judges from publicly speaking about pending cases. Responding to “an increase in attacks on judges’ judicial independence,” one state has amended its judicial code to permit judges to comment about the procedural, factual, or legal basis of a decision when criticism of the decision becomes the focus of a judicial campaign or recall election. ABA Section of Litigation leaders suggest that the new provision strikes a balance between protecting an individual judge’s First Amendment rights and the public concern that a judge’s speech could impact the outcome or fairness of a pending proceeding.

New Judicial Canons Issued

Effective July 1, 2020, the Supreme  Court of California amended Canon 3B(9) of the California Code of Judicial Ethics relating to impartial discharge of adjudicative duties. The amendment adds new language permitting any judge to speak publicly about a pending case, “provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.”

Specifically, the amendment permits a judge to respond to attacks on particular decisions that become the focus of elections or recall campaigns—even if the decision is made by another judge. According to the Supreme Court of California Advisory Committee on the Code of Judicial Ethics’ Invitation to Comment, “judges may be reluctant to issue controversial decisions because they will be unable to defend themselves if attacked while the matter is pending.” The amendment also recognizes the tension between the ability to speak publicly and the requirement that judges at all times act to promote public confidence in the integrity and impartiality of the judiciary, as set forth in Canon 2A.