New ethics rules for judges unveiled

The state Supreme Court has updated the Code of Judicial Ethics [see Judicial Ethics attachment] with rules about gifts, social media, gender identity and elections.

The revisions were announced Wednesday as the agency tasked with enforcing these rules, the Commission on Judicial Performance, faces its first audit -- and in the wake of the first successful judicial recall campaign in California in decades.

The most significant changes may prove to be the ones associated with campaigns. Judges are now barred from soliciting judicial campaign funds from court staff, retired judges, or anyone else for whom a request for donations might appear "coercive."

The court's 11-member Advisory Committee on the Code of Judicial Ethics spent months drafting the rules, with public comment in April and May.

"Suggestions and comments included those from members of the public, the court's Committee on Judicial Ethics Opinions, judges, the California Judges Association, and the state Commission on Judicial Performance, combined with recommendations from our committee," said the committee's chair, 4th District Court of Appeal Justice Richard D. Fybel.

Judges Association President Paul Bacigalupo said his organization wanted rules that were easy to follow.

For instance, gender identity and expression has been added to the list of characteristics protected against discrimination. Bacigalupo said judges have sometimes inadvertently offended transgender litigants.

"We need to be better informed about how people need to be treated to ensure access and fairness in the courts," said Bacigalupo, a Los Angeles County Superior Court judge.

The rules also call for judges to use the same discretion on social media they do with other interactions. This includes not "lending the prestige of their office" to causes, disclosing protected information or "casting doubt on the judge's capacity to act impartially."

Judges can now receive "nominal" gifts that "would neither influence nor reasonably be perceived as intended to influence the judge."

The most significant changes may prove to be the ones associated with campaigns. Judges are now barred from soliciting judicial campaign funds from court staff, retired judges, or anyone else whom a request for donations might appear "coercive."

James A. Murphy has defended more than a dozen judges on ethics charges. He said he welcomed the new rules, particularly the ones that make candidates for the bench subject to the same rules as incumbents.

But the partner with Pearson Bradley & Feeney in San Francisco said the rules are still ambiguous for judges running for political offices -- such as his client Steven Bailey, who faces incumbent Attorney General Xavier Becerra in next month's election. In a multi-day hearing last month, the commission claimed Bailey improperly campaigned before retiring from the bench.

"It wasn't as though Steve Bailey was hiding his efforts to determine whether there would be any support for his candidacy," Murphy said.

Judges and candidates for judicial office will also now be able to give campaign donations to each other. The new rules explicitly apply to recall campaigns, like the one that removed Santa Clara County Superior Court Judge Aaron Persky in June. In combination, this means judges will be able to donate money to defend other judges.

Bacigalupo noted Persky followed prosecutors' recommendations when sentencing a former Stanford University student for sexual assault, and survived a subsequent commission investigation. In response to the recall, the judges association has formed a group called the Judicial Fairness Coalition. He said the group's aims have already been misrepresented by critics.

"We're not trying to make it harder to remove a judge," Bacigalupo said. "Our idea is to timely and strategically respond to unjust criticism of judges and the judiciary."

A coalition of groups is gathering signatures to recall three judges in Contra Costa County in 2020. Michelle Chan, co-founder of Parents Against CPS Corruption, said more recalls would be coming in San Francisco and Santa Clara.

While she was inspired by the Persky recall, Chan said, "What happened in Palo Alto was a few people with power and money. It doesn't matter if we have money because we have numbers. I do believe they should be worried."