Ethical considerations for candidates for judicial office

The California primary election takes place on June 5. The state's general election follows on Nov. 6. This includes the election of judges of the superior courts. See generally Cal. Const., art. VI.

A candidate for election to the superior court must comply with ethical rules of conduct. This column is limited to discussion of ethical rules by which candidates for superior court -- both incumbent and non-incumbent officeholders -- must abide.

The California Constitution provides that the judicial power of this state is vested in the Supreme Court, courts of appeal and superior courts, all of which are courts of record. Cal. Const., art. VI, sec. 1. The California constitution establishes in each county a superior court of one or more judges. Cal. Const., art. VI, sec. 4. "A person is ineligible to be a judge of a court of record unless for 10 years immediately preceding selection, the person has been a member of the State Bar or served as a judge of a court of record in this State." Cal. Const., art. VI, sec. 15.

Election of Judges

The California constitution provides for the selection of judges of the superior courts. The constitution requires that judges of superior courts be elected in their counties at general elections except as otherwise necessary to meet the requirements of federal law. Cal. Const., art. VI, sec. 16, subd. (b). In Los Angeles County, for example, there will be 165 offices to be filled for the primary election. In smaller counties, as few as one office may be filled.

The Legislature may provide that an unopposed incumbent's name not appear on the ballot. Cal. Const., art. VI, sec. 16, subd. (b). Terms of judges of superior courts are six years beginning the Monday after Jan. 1 following election. Cal. Const., Art. VI, sec. 16, subd. (c); Cal. Const., art. II, sec. 20. The state constitution provides that all judicial offices are nonpartisan and the candidate's party preference shall not be included on the ballot for the nonpartisan office. Cal. Const., art. II, sec. 6.

Placement of Candidate's Name on Ballot

In order to appear on the ballot for the June primary -- otherwise known as the statewide direct primary election -- a candidate for judicial office must file a declaration of intention along with the required filing fee. See Elections Code Sections 8023, 8101, 8104-8106. The period to file a declaration of intention is extended five days for judicial candidates if the incumbent for a judicial office does not file a declaration of intention to succeed to the same office. Elections Code Section 8023(b). The period for filing the declaration of intention for this year's election closed on Feb. 7. See, e.g., Candidate Handbook and Resource Guide, June 5, 2018, published by the Los Angeles County Registrar-Recorder/County Clerk at www.lavote.net.

Friday is the final day a candidate for judicial office can file a declaration of candidacy and nomination petition in this year's election cycle. See Elections Code Sections 8020, 8061-8062, 8100, 8105-8106 and 10407. A candidate may file a statement of qualifications for inclusion with the official sample ballot booklet no later than this date. Elections Code Section 13307. This statement may not refer to opponents for judicial office.

Ethical Rules of Conduct

"The Supreme Court shall make rules for the conduct of judges, both on and off the bench, and for judicial candidates in the conduct of their campaigns." Cal. Const., art. VI, sec. 18, subd. (m), as amended in 1995 pursuant to Proposition 190. Thus, judges of the superior courts are subject to the provisions of the California Code of Judicial Ethics adopted effective Jan. 15, 1996, by the California Supreme Court and last amended effective Dec. 1, 2016, although the code indicates that formal standards of judicial conduct have existed for more than 65 years. See California Code of Judicial Ethics, page 2 (Preface). Further, the code governs the conduct of candidates for judicial office and is binding upon them. Cal. Code of Judicial Ethics, page 3 (Preamble).

In summary, the code is composed of a preface, preamble, terminology and six broad canons relating to judicial conduct. Some canons are followed by a commentary section to provide guidance as to the purpose and meaning of the canons. "Intrinsic to this code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and must strive to enhance and maintain confidence in our legal system." Cal. Code of Judicial Ethics, page 3 (Preamble).

Under the code, a "candidate for judicial office" is a person seeking election to or retention of a judicial office. "A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election authority, or authorizes solicitation or acceptance of contributions or support." Cal. Code of Judicial Ethics, page 4 (Terminology); see Preamble and Canons 3E(2)(b)(i), 3E(3)(a), 5, 5A, 5A (Commentary), 5B(1), 5B(2), 5B(3), 5B (Commentary), 5C, 5D and 6E.

Canon 1, which declares the requirement that a judge uphold the integrity and independence of the judiciary, emphasizes that an independent, impartial, and honorable judiciary is indispensable to justice in our society. Canon 5 more specifically addresses the subject at hand: "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." On attending political fundraising or endorsement events, see generally Cal. Supreme Court, Committee on Judicial Ethics Opinions, CJEO Formal Opinion 2016-008.

In addition, judges and candidates for judicial office must comply with all applicable election, election campaign, and election campaign fundraising laws and regulations. Obviously, a failure to comply with state law or regulations carries possible civil and criminal penalties separate from the ethical mandates enforced by the Commission on Judicial Performance. See Cal. Const., art. VI, sec. 18 and 18.1; Political Reform Act of 1974 (Gov. Code section 1090 et seq.); Cal. Code of Judicial Ethics, Canon 6 (Compliance with the Code of Judicial Ethics).

Canon 5 makes it clear that "[j]udges and candidates for judicial office are entitled to entertain their personal views on political questions. They are not required to surrender their rights or opinions as citizens." In fact, the advisory committee commentary states that the term "political activity" should not be construed so narrowly as to prevent private comment. See Cal. Code of Judicial Ethics, page 42 (Advisory Committee Commentary: Canon 5.) However, judges may not engage in political activity that may create the appearance of political bias or impropriety.

The following, therefore, is a summary of relevant provisions of the Code of Judicial Ethics, including guidelines and prohibitions:

Judges and candidates for judicial office shall not act as leaders or hold any office in a political organization; make speeches for a political organization or candidate for nonjudicial office, or publicly endorse or publicly oppose a candidate for nonjudicial office; or personally solicit funds for a political organization or nonjudicial candidate. See Cal. Code of Judicial Ethics, Canon 5A (Political Organizations).

Under this canon, however, a judge may publicly endorse a candidate for judicial office. "Such endorsements are permitted because judicial officers have a special obligation to uphold the integrity, impartiality, and independence of the judiciary and are in a unique position to know the qualifications necessary to serve as a competent judicial officer." See Cal. Code of Judicial Ethics, page 43 (Advisory Committee Commentary: Canon 5A.)

Canon 5A further addresses the limitation on monetary contributions to political parties, political organizations, or nonjudicial candidates. As noted in the advisory committee commentary to Canon 5A, judges are not prohibited from soliciting contributions from anyone, including attorneys. In soliciting campaign contributions or endorsements, however, "a judge shall not use the prestige of judicial office in a manner that would reasonably be perceived as coercive."

In addition, under Canon 5B (Conduct During Judicial Campaigns and Appointment Process), a candidate for judicial office is prohibited from making statements that commit the candidate with respect to cases, controversies, or issues that are likely to come before the courts, or knowingly, or with reckless disregard for the truth, make false or misleading statements about the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent.

A candidate for judicial office must review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee before its dissemination. Also, a candidate must take appropriate corrective action if the candidate learns of any misrepresentations made in his or her campaign statements or materials. Cal. Code of Judicial Ethics, page 44, Canon 5B. (These rules and those in the paragraph immediately above apply to those seeking appointment to the bench as well; however, this column is limited to discussion of judicial campaigns.)

The advisory committee commentary thus notes: "Canon 5B(1)(b) prohibits knowingly making false or misleading statements during an election campaign because doing so would violate Canons 1 and 2A [relating to avoiding impropriety and the appearance of impropriety and promoting public confidence in the judiciary], and may violate other canons."

Canon 5B(3) requires every candidate for judicial office to complete a judicial campaign ethics course approved by the Supreme Court no earlier than one year before or no later than 60 days after the filing of a declaration of intention by the candidate, the formation of a campaign committee, or the receipt of any campaign contribution, whichever is earliest. However: "Unless a judge forms a campaign committee or solicits or receives campaign contributions, this requirement does not apply to judges who are unopposed for election and will not appear on the ballot."

A financial contribution by a candidate for judicial office to his or her own campaign constitutes receipt of a campaign contribution. Cal. Code of Judicial Ethics, page 45 (Advisory Committee Commentary: Canon 5B).

Candidates for judicial office may speak to political gatherings only on their own behalf or on behalf of another candidate for judicial office. Cal. Code of Judicial Ethics, page 45, Canon 5C (Speaking at Political Gatherings). A judge or candidate for judicial office may engage in activity in relation to measures concerning improvement of the law, the legal system, or the administration of justice, only if the conduct is consistent with the code. Cal. Code of Judicial Ethics, page 45, Canon 5D (Measures to Improve the Law). However, "[w]hen deciding whether to engage in activity relating to measures concerning the law, the legal system, or the administration of justice, such as commenting publicly on ballot measures, a judge must consider whether the conduct would violate any other provisions of this code." Cal. Code of Judicial Ethics, page 45 (Advisory Committee Commentary: Canon 5D).

A candidate for judicial office embarks on a challenging and often stressful process which most individuals enter for the first time in their legal careers. And with the judicial election campaign season approaching full swing, candidates are well advised to comply with pertinent canons of judicial conduct and other legal requirements.

The following are offered as useful resources: Rothman, Fybel, MacLaren and Jacobson, California Judicial Conduct Handbook (4th ed. 2017), sec. 11:40-11:68; 2018 Judicial Elections Handbook (14th ed. 2018), published by California Judges Association; Candidate Handbook and Resource Guide, Statewide Direct Primary Election, June 5, 2018, published by the Los Angeles County Registrar-Recorder/County Clerk, www.lavote.net.

The author would like to thank student Amanda Gomez for her assistance on this project.