For Public Comment: Judicial Response to Public Criticism of a Pending Case

The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft formal opinion addressing the ethical parameters of judicial response to public criticism of a pending proceeding.

CJEO Draft Formal Opinion 2024-027analyzes the 2020 amendment to canon 3B(9) of the Code of Judicial Ethics, which permits, in connection with a judicial election or recall campaign, any judge to make a public comment about a pending proceeding, subject to certain restrictions. The committee recommends judges proceed with caution and under the following ethical limitations:

• the comment may not affect the outcome or fairness of the proceeding; and
• it must be about the procedural, factual, or legal basis of the criticized decision.

Canon 3B(9) now gives judges wider latitude to respond to public criticism in connection with an election or recall, but the limits of the amendment have not been widely tested," said committee member Judge Robert J. Trentacosta. "This opinion seeks to distill the dos and don'ts for judges faced with this decision of whether and how to respond to public criticism."

The committee's Invitation to Comment is posted on CJEO's website. Comments are due by Sept. 20, 2024, and may be submitted by CJEO's online comment form, by email to [email protected], or by mail to:

Jody Vakili
Legal Advisor
California Supreme Court Committee on Judicial Ethics Opinions
350 McAllister Street
San Francisco, California 94102

All comments submitted to CJEO may be posted on CJEO's website for public review unless clearly marked as confidential.

Public comments are an important part of CJEO's process. These comments provide useful insight and help ensure that the committee considers all potential solutions, consequences, and points of view, which serves to improve the final opinion.

About the Committee on Judicial Ethics Opinions (CJEO)
The Committee on Judicial Ethics Opinionsis a 12-member advisory committee that includes appellate justices, trial court judges, two retired judges, and a commissioner. The committee is appointed and authorized by the California Supreme Court, but its work is independent of the court, the Judicial Council, and all other entities. Its opinions are advisory and do not necessarily reflect the views of the California Supreme Court or any other entity.

The committee issues formal, informal, and expedited advisory opinions on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities. CJEO's websiteincludes advisory opinions, resources dedicated to specific judicial assignments and issues, and extensive judicial ethics tools and resource materials for the benefit of the bench and the public.