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Panel: Judges may attend demonstrations, must monitor participation

San Francisco Chronicle logo San Francisco Chronicle 7/22/2020 By Bob Egelko
a group of people standing in front of a crowd: Judges were generally clear to attend the first Women’s March in Washington, D.C., because it was considered nonpartisan. Subsequent marches were more problematic as they took on political overtones. © Mario Tama / Getty Images

Judges were generally clear to attend the first Women’s March in Washington, D.C., because it was considered nonpartisan. Subsequent marches were more problematic as they took on political overtones.

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 undermine the public’s confidence in the judiciary,” said the panel, whose 12 members were appointed by the 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 off-limits, 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 Cantil-Sakauye 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.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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