Recently brought to our attention were new amendments to the code of judicial ethics. The one that caught our attention is this:
Promoting Public Confidence
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge shall not make statements 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.
Sounds innocuous enough but consider the following:
Those of us on the media side of the fence have an issue with gaining access to the judiciary in general. As such, rocking the judicial boat and reporting the facts can get us cut off from access. Reporting anything that does not promote public confidence in the integrity and impartiality of the judiciary can get us uninvited to press briefings and releases and cause those in some circles to ignore our requests for more information. If all of this was not detrimental enough to a free press, we can even have chief justices visit our editors and threaten them with a permanent loss of access as an organization if journalists and reporters are not punished or re-assigned internally.
For their part, judges are not permitted to make statements unless they are through rose colored glasses. Think about the considerable amount of material on this site that many others in this state would construe as a criminal act. Has anyone ever seen a judge make any commentary whatsoever about the embezzlement of public funds? Has anyone ever seen a judge make any commentary about the legality of hiring unlicensed contractors and grossly overpaying them in the same article or sentence? The answer to these questions is a big, fat no.
The fact of the matter is that if one of AOC’s vendors gave someone in the judiciary a million dollar kickback and there were bench officers that witnessed this, they are prohibited from making any comment about it because it does not promote public confidence in the integrity of the judiciary.
By making any comment pertaining to the legality of the kickback or even that it was a kickback versus keeping silent and saying nothing at all, they risk making a statement about controversies or issues likely to come before the court. Saying nothing at all enables the behavior and conceals that behavior from the public eye, thereby promoting public confidence in the integrity of the judiciary.
In short, it is the perfect storm to enable criminal activity to go on in the branch unchecked and void of media scrutiny because even attorneys are bound by similar rules.
Judicial Council Watcher was launched precisely for all of the above reasons. We’re not judges. We’re not bound by these rules. We’re not beholden to an editor that risks losing access or is locked out of press briefings because of what we report to you – our readers.
You will note that the many judges that visit this site NEVER COMMENT on threads that call into question the legalities of much of what everyone else knows is unlawful but we can assure you that they read those threads by the thousands with a considerable degree of jaw-drop.
Their hands are tied and their voices are silenced by this rule that enables criminal or improper activity. Reading this rule in black and white above, is it all beginning to come together?
This is one of the reasons why Judicial Council Watcher recommends spokespersons for the various organizations, such as courts, alliances and associations that are neither judges, nor attorneys and empower them with a license to say it like it is. They can easily enough disclaim that judicial or attorney ethics preclude attorneys or judges or members of the organization from making any comments regarding these matters or making any statements themselves, thereby avoid running afoul of these rules that enable lawlessness.
In the meantime, Judicial Council Watcher exists to be a voice that will perpetually point to the elephant in the room that nobody can talk about. There is no prohibition on commenting on non-controversial threads that don’t run afoul of these enabling rules and you see our bench officers commenting in those threads. We also know from retired bench officers that contact us that we’ve precisely hit this nail on the head and have driven it home.
We also believe that this thread is written in such a way that does not preclude current bench officers from commenting on it, since comments about these rules is what the Supreme Court seeks. Since we know they read, please provide the Supreme Court your public comments in this thread and confirm or deny the accuracy of our statements for public consumption so that everyone else gets a good idea of the gravity of the challenge.
Edited to add – Without commenting, one or a whole group of people can click the little star rating system below and confirm the accuracy of these statements. We would love to see 500 people rate this post without comment but know we will be fortunate enough to have ten people rate the post, even though over two thousand people will read it this week
More on the request for comments: http://www.courts.ca.gov/documents/SP11-07.pdf
Produced by Judicial Council Watcher with the assistance of Yen Interactive Media
Judicial Council Watcher 
Michael Paul
July 3, 2011
Further down in this missive is a statement that a judge should avoid publishing in a medium wherein they do not control the advertising or where their prestige could be borrowed to endorse a position, product or service. While those aren’t the exact words, that is what it amounts to. Given that in no case would a judge control what advertising rides alongside their op-ed, this seems to give way to selective enforcement.
Wendy Darling
July 3, 2011
If it looks like a pre-emptive blatant censorship, walks like pre-emptive blatant censorship, flys like pre-emptive blatant censorship, and it smells like pre-emptive blatant censorship, guess what . . . it’s probably pre-emptive blantant censorship.
It’s a sad day when the “leadership” of the judicial branch seeks to circumvent fundamental rights protected under the First Amendment in order to pre-emptively silence people simply because the truth being spoken about the misconduct of that very same “leadership” has become too inconvenient or too uncomfortable. Really, really sad.
Long live the ACJ.
JusticeCalifornia
July 3, 2011
Selective enforcement indeed. So those in Cali who exercise their free speech rights do so at their own risk.?
In late 2009 or early 2010, ron george mentioned bloggers in jammies at a judicial council meeting. You could tell bloggers in jammies were irritating him. Well, rightfully so, I suppose. . . .george unexpectedly announced his retirement six or seven months later.
But the bloggers in jammies didn’t let up. Why? The truth will out. So long as top leadership continues hurling insults at branch members, legislators, and “court critics”; propagating and disseminating disinformation; destroying damning evidence; thwarting state audits; playing money-bag-swag games with certain service providers at taxpayer expense, and the like, it really cannot expect to escape deserved criticism, can it? Top leadership’s down low actions speak far louder than any words on this blog. Hey, if not for top leadership’s down low actions, this blog would not exist.
Michael Paul
July 3, 2011
Looking at this proposal some more, I see two words that sum up the source.
Beth Jay. What are the odds that two consecutive chief justices would chose the same personal attorney?
Judicial Council Watcher
July 3, 2011
What are the odds that said attorney would be giving client “B” advice that would be anything less than protecting the interests of client “A” in the process? What are the odds that new rules would be promulgated in a manner as to further silence “pj bloggers” or op-ed writers? It is almost as if the only safe territory is nom de plume against a well oiled, artfully maintained propaganda machine? Just another attempt to regain control of the message through intimidation.
Wendy Darling
July 3, 2011
Good luck with that — attempting to regain control of the message through intimidation. Some of us have had quite enough of the thugs and bullies at 455 Golden Gate Avenue.
Long live the ACJ.
JusticeCalifornia
July 3, 2011
michael, excellent point. If Beth Jay represented rg and now represents rb2, it would seem she has a very big conflict. She cannot really advise rb2 to do anything against rg’s interests. .
SF Whistle
July 3, 2011
I am very curious about this effort to “Promote Public Confidence”….
I am aware of a current case in San Francisco involving a Judge that recused herself —admitting that she had improper contact with a previously disqualified Judge in the same case—
The recused Judge then left post-it sticky notes in the court file for the next Judge assigned to the case to read—much like crib notes—these notes reflected a total bias (specific to one party only) and were not intended to be discovered—The current Judge admits these notes exist—but states that she really has not relied upon them..?—–How’s this for promoting public confidence…?
……………..” A judge shall not make statements 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.”
sharonkramer
July 3, 2011
Current Code of Judicial Ethics:
“Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
D. Disciplinary Responsibilities
(1) Whenever a judge has reliable information that another judge has violated any provision of the Code of Judicial Ethics, the judge shall take or initiate appropriate corrective action, which may include reporting the violation to the appropriate authority.*
(2) Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action.
ADVISORY COMMITTEE COMMENTARY:
Appropriate corrective action could include direct communication with the judge or lawyer who has committed the violation, other direct action if available, or a report of the violation to the presiding judge, appropriate authority, or other agency or body. Judges should note that in addition to the action required by Canon 3D(2), California law imposes additional reporting requirements regarding lawyers.”
It seems to me that judges who are aware and can evidence what has been occurring in the JC and CJP would be well within their right to ask the appropriate state agency, BSA, to investigate and to take appropriate corrective action.
If judges are not able to practice truthful speech that is a guaranteed right for them under the first amendment; then how are they suppose to be able to protect the public’s first amendment rights? How would any judge even be able to take oath of office which states they swear they will uphold the Constitution? Writing edits to Judicial Canons of Ethics with the result of chilling judicial speech for the public good, sure seems like a pretty big violation to me.
Wendy Darling
July 3, 2011
Sadly, as many of us have come to recognize, our new “King” isn’t really any different from our old “King.” A timely reminder as we prepare to celebrate America’s birthday, the 4th of July, and the fundamental importance of that crucial moment in American history two hundred and thirty-five years ago tomorrow, and the obligation and duty to its principles today:
In Congress, July 4, 1776. From the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness . . . But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despostism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”
What is written thereafter is a list of reasons why King George had become unfit to rule. Chief among these reasons:
“He has refused his Assent to Laws, the most wholesome and necessary for the public good.”
“He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.”
“He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
“He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.”
“He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.”
“He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”
“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”
“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.”
“For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”
“He has abdicated Government here, by declaring us out of his Protection and waging War against us.”
“In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act may define a Tyrant, is unfit to be the ruler of a free people. “
Long live JCW.
Long live the ACJ.
And long live the First Amendment.
Additional note: If you have a moment tomorrow, drop a line to the U.S. men and women serving in uniform, both here and overseas, on any of the many available websites. It would mean a lot.
unionman575
July 4, 2011
How sad that our Judges cannot speak out freely on these matters.
tony maino
July 4, 2011
It is true that judges must be very careful when they make any public comments about the judiciary. I have no doubt that there are some members of the Judicial Council who believe that it does not “promote public confidence” in the judiciary to point out for years the AOC received gifts and did not post these gifts on their web site; that the AOC has overpaid for court repairs; that the AOC is paying over $1000.00 a square foot to build some courthouses; that the CCMS system is over budget ( if it ever had a budget) and that it is many years from deployment; and so forth and so on. Will judges who bring such issues to the public forum be disciplined by the CJP? So far this has not happened.
Aninteresting aside: does doing the things mentioned above “promote public confidence” in the judiciary? Does calling fellow members of the judiciary “ants” and “clowns” promote public confidence?”
Sites such as this one perform a valuable service even when I do not agree with it.
Wendy Darling
July 4, 2011
With all due respect, the Office of the Chief Justice (both former and present), the Judicial Council, Vickrey, Overholt, and the AOC have done, and continue to do, a stellar job of not promoting public confidence in the California judicial branch all on their own. A person doesn’t have to look any further than the BSA audit report identifying and documenting gross mismanagement, malfeasance, and failed administration and oversight of the AOC and CCMS. Lying to the State legislature, while thumbing their nose with a virtual middle finger only made things worse, and it’s just continued to go down hill from there. The hypocrisy is just astonishing.
Long live the ACJ.
Delilah
July 4, 2011
Amen to that, Wendy.
Sadly, the blatant corruption and complete unaccountability of the JC/AOC/CJ seems to be but a microcosm of everything that is wrong with this country right now. There needs to be criminal prosecution of white-collar criminals in every branch of every institution, private, state and federal. Such accountability and criminal prosecution is seeming more and more like a pipe dream, because all of those who should/could prosecute these criminals and give the public the satisfaction of at least a perp walk, are in the same category of untouchable racketeers and/or amoral empty suits/robes as the perps they should be prosecuting. Either that, or they are spineless sycophants or persons interested in nothing more than their own political aspirations or “legacies,” everything else be damned.
Long live the ACJ, JCW, and all other groups rising up against the machine.
And count me in on a recall of Queen Georgette.
sharonkramer
July 4, 2011
“A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge shall not make statements 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.”
Needs another sentence. Something to the effect of:
“This Canon shall not violate the Constitutional rights of judiciaries to speak and write of judicial branch policies and practices that are detrimental to the impartial performance of the adjudicative duties of judicial office.”