On November 19, 2024, the California Supreme Court Committee on Judicial Ethics Opinions released CJEO Formal Opinion 2024-027, addressing an important ethical question: Under what circumstances may a judge publicly comment on a pending proceeding when faced with criticism during a judicial election or recall campaign? See CJEO Formal Opinion 2024-027 (Nov. 19, 2024). This opinion builds upon the 2020 amendment to Canon 3B(9) of the California Code of Judicial Ethics, which modernized judicial ethics to address increasing public scrutiny and criticism of judges during elections and recalls.
Prior to 2020, Canon 3B(9) strictly prohibited judges from publicly commenting on pending or impending cases, even when their decisions were publicly criticized. This restriction created challenges, as judges were unable to defend their rulings or correct misinformation. Recognizing the need for balance, the 2020 amendment provided a critical exception: Judges may now publicly comment on a pending proceeding during elections or recalls, as long as their comments (1) do not affect the outcome or fairness of the case and (2) are limited to the procedural, factual, or legal basis of the decision at issue.
The CJEO opinion highlights the careful considerations judges must make when exercising this right. While judges may respond to public criticism, they must remain mindful of their ethical obligations to maintain judicial impartiality, integrity, and public confidence in the courts. Judges are also encouraged to consider whether a third party, such as bar associations or judicial organizations, might be better suited to respond on their behalf. This approach ensures that judges can address misinformation or clarify their decisions while upholding the dignity and independence of the judiciary. The 2020 amendment, along with this opinion, represents a thoughtful and balanced response to modern challenges, equipping judges with tools to preserve public trust and confidence in the judicial system.
