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December 2024 Cover Story - JUDICIAL ETHICS: Ethics Compliance for California Judges

by the Honorable Gerald G. Johnston (Ret.)

The most unwelcome correspondence a judge can receive is a “greeting” from the Commission on Judicial Performance (CJP). This is an independent state agency established in 1960 and charged with the duty to investigate and, where appropriate, discipline judges. Investigations by CJP are initiated by the receipt of a complaint. Discipline may include no action, advisory letters, private admonishments, public admonishments, or in some cases removal.

I first became aware of CJP in the late 1980s when two Orange County judges became its cynosure due to their well-documented reports that they followed . . . well, flexible moral compasses. Both jurists prudently decided to retire and thus avoided further exploration of their activities. As a young deputy district attorney at the time, I was pleased and proud to know there was a powerful watchdog dedicated to maintaining the integrity of the bench.

My perspective changed a bit in 1999 when, as a new judge, I was subject to the jurisdiction of CJP. Suddenly, this altruistic and effective agency became an oppressive, nitpicking and bureaucratic nuisance which spent too much time investigating judges for little or no good reason. With twenty-five years of hindsight, I now believe neither impression is correct. CJP does important and necessary work to preserve the integrity of justice system, but at times has been too heavy-handed on the judges it oversees.

As a new judge of the Orange County Superior Court, I had a “meet and greet” appointment with the then Presiding Judge who provided valuable advice to a beginner: “If you would not be comfortable reading a story about your proposed conduct on the front page of the newspaper, then don’t do it.” That advice served as my touchstone for the next twenty-five years, and seemed to work pretty well, as I never received one of those alarming “greetings” letters from CJP.

My lack of interaction with CJP is not unique; I am pleased to share most of my former colleagues on the Orange County Superior Court bench can assert the same claim. CJP’s published orders of discipline and reproval against Orange County judges are the exceptions and not the rule. The vast majority of judges are careful and diligent in avoiding ethical sand traps and act in an exemplary manner.

Judges like to see themselves as functioning outside the sphere of politics. We prefer to believe our job is hermetically limited to interpretation of law, evaluation of facts, and unbiased decision-making. However, in my estimation, jurists who express the notion that we occupy territory outside the political landscape assume avoidable risk. The judiciary has increasingly been thrust into public view, sometimes in harsh and critical fashion as the public expresses growing concern about conflicts of interest, integrity, and bias impacting the legitimacy of the third branch of government.

California jurists are bound to formal standards of conduct contained in the Code of Judicial Ethics (Code). The Code articulates six general rules or canons which must be observed by all bench officers in the state. Failure to comply with the canons creates a risk of punishment initiated by CJP.

The canons are as follows:
Canon 1: A judge shall uphold the integrity and independence of the judiciary.
Canon 2: A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
Canon 3: A judge shall perform the duties of a judicial office impartially, competently, and diligently.
Canon 4: A judge shall so conduct the judge’s quasi-judicial and extrajudicial activities as to minimize the risk of conflict with judicial obligations.
Canon 5: A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.
Canon 6: Compliance with the code of judicial ethics (requires sitting, retired and temporary judges to comply).

Since 1990, with the publication of the first edition of the late Judge David M. Rothman’s California Judicial Conduct Handbook (Rothman), bench officers have had an invaluable tool in seeking guidance and education on how to avoid ethical pitfalls and execute professional obligations in an exemplary manner. Most judges I know turn to this comprehensive reference for direction when confronted with novel ethical issues.

The average judicial career is about twenty years. Every single working day of that lengthy period requires that a judge make decisions and interact with the public in sometimes difficult and pressured settings. Ethical issues are common, yet judges strive hard to get it right—and mostly do.

CJP publications are widely available and offer valuable information about conduct that judges must avoid. As mentioned earlier, CJP investigations are rather rare since judges are deft at properly addressing ethical questions. I contacted some of my former colleagues and asked them to share stories about ethical challenges they had confronted successfully. I have omitted names and some facts to preserve confidentiality. Nonetheless, all the following scenarios are true. The reader may wish to refer to the above listed canons in considering the ethical question posed by each scenario.

The Uncontrollable Litigant (Canons 1, 2, and 3): Judge M had a case where the self-represented litigants were difficult and unrelenting in their demands. They would file several ex parte applications per week seeking improper relief. When Judge M properly denied the requests, the litigants would become agitated and accuse her of bias. Judge M was challenged to maintain the dignity of the court while still allowing litigants to be meaningfully heard. She complied with her ethical obligations by reminding the litigants each time they appeared of her willingness to consider their prayers, but also warned them that personal attacks would cause an end to the proceeding. Through a patient application of firm guidance and control of her courtroom, Judge M eventually convinced the litigants to abandon their personal attacks. Judge M was able to avoid threatening or commencing a contempt action and the case proceeded to resolution.

Socially Awkward (Canons 1, 2, and 4): Judge B, prior to joining the bench, was active on social media. As a lawyer and private citizen, he had enjoyed sharing thoughts and ideas through this medium. However, in his judicial role, he determined a significant presence on social media created a potential conflict of interest. He was concerned about the risk of potential contacts with attorneys or litigants in actions pending before him. Even the most innocent postings might be interpreted to be ex parte communications. He decided to limit his presence on social media going forward.

It’s Just Lunch (Canons 1, 2, and 4): Judges may not accept gifts of any type from individuals or entities which may have business with or before the court. Judge X was a successful civil litigator before taking the bench. He had many friends in the legal community and wanted to maintain his relationships while complying with his new ethical obligations. He made sure to disclose his relationship with attorney friends who appeared before him, and on occasion recused himself from matters coming before him where he had some prior knowledge or involvement in the case as a private attorney. However, becoming a judge did not require him to terminate friendship with his former colleagues in the legal community. Judge X continued to socialize with friends. Although, it may not have been required for friends who were unlikely to ever appear before him, Judge X adopted a policy of always paying his own way for meals—thus avoiding ethical complications.

The Obstreperous Counsel (Canons 1, 2, and 3): Judge T had made a few difficult rulings in a complex civil matter. One of the attorneys took exception to his decisions and filed a document in the case accusing the judge of misconduct and sought his removal. A review of the judge’s actions confirmed he had acted properly throughout the case. He was not recused. Judge T heard the trial and made an award in favor of the party represented by the attorney who had accused him of misconduct. Judge T told me that although he was unhappy with the attorney who had disparaged him, this had no impact on his obligation to consider the law and facts and to make a proper decision.

Using Judicial Status for Personal Gain (Canon 1, 2, and 4): In 2000, I was driving from Southern California to ski in Mammoth Lakes. It was late at night and the road was clear. I allowed my speed to creep up. Suddenly, I saw blue and red lights flashing behind me and realized I had caught the attention of a CHP officer. I pulled over and rolled down my window. The officer took my license and registration and returned to his vehicle. At no time did I volunteer that I was a judge. However, a few minutes later he returned to my window and asked “What do you do for a living?” As a law abiding citizen, I dutifully answered his question. The officer nodded respectfully and returned to his unit. I will confess, I experienced a rather warm glow at that moment, thinking I might be about to avoid an expensive ticket. When the officer returned to my car he handed me my speeding ticket and said, “As a judge, you should really know better. Have a nice night your honor.” I continued my driving that night a bit disappointed. However, after some reflection, I was grateful to the officer for his professionalism and even-handed enforcement of his duties—and for saving me from experiencing an ethical dilemma.

Politically Correct (Canons 1, 2, and 4): Judges are a part of the third branch of government. This classification imposes significant constraints on engagement in political activity. Judge S took the bench after long involvement with local and state politics. He and his wife enjoyed engaging in and supporting political campaigns and routinely posted lawn signs at their residence in support of various candidates and initiatives in upcoming elections. Judge S was surprised to learn judges and their families are “strongly dissuaded” from placing lawn signs in front of their home or bumper stickers on their vehicles in support of a non-judicial race or initiative (see Rothman at Section 11:33). Judge S somewhat sadly stopped posting his lawn signs. Many new judges are a bit surprised to learn of the limits on First Amendment political expression suggested by the canons. The canons also prohibit financial contributions to most non-judicial races. Judges must maintain a position of neutrality in all political discourse.

Recognizing Bias (Canons 1, 2, and 3): A core element of judicial obligation is to demonstrate an absence of bias and prejudice in all aspects of a proceeding. Simply donning a robe does not, in itself, remove a judge’s pre-existing thoughts, beliefs, and values. Judges must constantly self-examine to determine if they hold any beliefs or positions that might impact the ability to be fair (see Rothman at Section 2:17). This is not an easy task. This task must be constantly performed by every judge whether newly appointed or with decades of experience on the bench.

Years ago, Judge L approached me as her supervising judge and reported she felt unable to oversee a case involving very difficult litigants and counsel. She wished to recuse herself and have the case transferred to another judge for trial. Canon 3B(8) mandates a judge “dispose of all (assigned) judicial matters fairly, promptly and efficiently.” Judge L had encountered a conflict between her obligation to conduct her assigned work and her personal feelings about parties and counsel in a case before her. In most circumstances, a judge is required to manage all assigned work and may not offload unwanted matters onto the plate of colleagues. However, the degree of animosity and improper conduct demonstrated by the parties and counsel was significant and it was not surprising Judge L would question her ability to appear neutral. Judge L traded cases with another judge who was able to try the case without incident. Such circumstances are fortunately rare. On this occasion, Judge L rightly determined the interests of justice supported a transfer of the case.

Ex parte communication from staff (Canons 1, 2, and 3): We all understand neither judges nor jurors should receive information outside the scope of the proceedings regarding a pending case. There are a variety of safeguards to ensure this type of communication does not occur. What does a judge do when court staff attempts to share information about an attorney, party, or witness in a pending matter? During my career it was not uncommon for my bailiff or clerk to come to my chambers to report something they saw or heard in court. Most of the time, this communication was proper and did not involve information which might impact my decisions in a case. I found it prudent to establish a guideline with staff that they should only report to me things that they personally witnessed in court (rude behavior by counsel, unruly parties, fights, etc.). I instructed them not to share with me comments by an attorney or witness about a case that might impact my impression of any case-related issue. Such information could be construed as an ex parte communication. I expect I missed out on some interesting gossip, but also avoided where I might have been provided information that could have created an ethical issue.

Fundraising (Canons 1, 2, and 4): Canon 4C(3)(d)(i) states “A Judge shall so Conduct the Judge’s Quasi-Judicial and Extrajudicial Activities as to Minimize the Risk of Conflict with Judicial Obligations” (Cal. R. Ct. Canon 4) . . . a judge “shall not personally participate in the solicitation of funds or other fundraising activities, except that a judge may privately solicit funds for such an organization from members of the judge’s family or from other judges (excluding court commissioners, referees, court-appointed arbitrators, hearing officers, and-temporary judges. . . and retired judges who serve in the Temporary Assigned Judges Program, practice law, or provide alternative dispute resolution services).” This rule applies to all fundraising no matter how meritorious the cause. My moment of truth (and weight gain issues) came from Girl Scout cookies. My daughter was eager to sell as many boxes of cookies as possible during the annual fundraising drive. In order to avoid a violation of Canon 4, each year I would purchase my daughter’s entire allocation of cookies. I gave away many as gifts, but some found their way into my pantry with regrettable results.

I have touched on only a few of the countless circumstances that require judges to recognize and avoid ethical violations. No judge aspires to become a “teaching example” for others by way of a CJP order. I am proud to assert judges of the Orange County Superior Court bench are assiduous in complying with the duty to avoid ethical conflicts. The creation and implementation of California’s Code of Judicial Ethics has served to improve the judiciary, the administration of justice, and the integrity of our entire legal system.

the Honorable Gerald G. Johnston (Ret.) offers mediation and arbitration services through JAMS. He can be reached at gjohnston@jamsadr.com.