San Francisco Chronicle

Consider bias when at protest, judges told

- By Bob Egelko

Judges are not required to remain silent on turbulent issues, such as racial justice and police killings. But a California judicial ethics panel had some advice Wednesday for any judges who may be considerin­g attending a protest demonstrat­ion or a similar political event: Don’t go, unless you’re sure it won’t raise questions about your impartiali­ty.

Judges and judicial candidates “are not required to surrender their rights or opinions as citizens,” the state Supreme Court’s Committee on Judicial Ethics Opinions said, quoting from California’s ethical standards for judges. “They shall, however, not engage in political activity that may create the appearance of political bias or impropriet­y.”

The protest may involve an issue that is likely to reach the judge’s court, or participat­ion may imply endorsemen­t of a “political candidate or organizati­on,” the committee said. Or it may result in lawbreakin­g, like violating a curfew, or involve confrontat­ions between demonstrat­ors and police that could wind up in court.

“Judges may not participat­e in a public demonstrat­ion or rally if participat­ion might un

dermine the public’s confidence in the judiciary,” said the panel, whose 12 members were appointed by state Supreme Court’s justices.

The panel’s opinions advise California judges on compliance with ethical standards, whose violation is grounds for discipline by the state Commission on Judicial Performanc­e, subject to review by the state’s high court. Punishment can range from private or public reprimands to removal from the bench, a penalty generally reserved for severe and repeat rules violators.

Not all public gatherings are offlimits, said Santa Clara County Superior Court Judge Erica Yew, a committee member. For example, she told reporters, a city council or county board of supervisor­s may sponsor a meeting on a controvers­ial subject that judges could attend without appearing to take sides.

But the committee said a judge should leave such a meeting if, for example, the judge “sees other participan­ts with signs or hears crowds chanting slogans that are inflammato­ry, derogatory and inconsiste­nt with the judge’s own ethical duties.”

And in an era of social media, the committee said, “judges should always assume that their attendance will be known and that their conduct may be subject to comment and reporting.”

That developmen­t may help to explain past ethical advisory opinions that allowed some California judges to attend the massive Women’s March held in numerous cities on the day after President Trump’s inaugurati­on in January 2017. Organizers described the event in advance as peaceful and nonpartisa­n, and, according to the ethical opinions, participan­ts in the march could maintain their public impartiali­ty as long as they did not identify themselves as judges.

Yew said the ethics committee has discourage­d judges from attending women’s marches that “became more partisan” in subsequent years. But overall, the committee said, judges who want to express their views on an issue such as discrimina­tion should consider issuing a public statement or sending a letter or a column to the press.

The state Supreme Court and Chief Justice Tani CantilSaka­uye issued statements last month after the killing of George Floyd while in police custody in Minneapoli­s. Both condemned racism and, without going into specifics, promised, in the court’s words, to “confront the injustices that have led millions to call for a justice system that works fairly for everyone.”

Federal judges are subject to similar ethical standards, but enforcemen­t mechanisms are much different. Disciplina­ry panels in each U.S. appeals court can disqualify federal judges from some types of cases for ethical violations, but a federal judge can be removed from office only by congressio­nal impeachmen­t.

And the ethics rules are not enforced against U.S. Supreme

Court justices. When questions arise over their financial holdings, political activities or relationsh­ips with parties in the cases before them, individual justices regulate themselves.

 ?? Santiago Mejia / The Chronicle 2018 ?? Judges were told what to watch for when attending a protest, such as this one at the State Capitol in 2018 in Sacramento.
Santiago Mejia / The Chronicle 2018 Judges were told what to watch for when attending a protest, such as this one at the State Capitol in 2018 in Sacramento.

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