Judge Aaron Persky. Credit: Jason Doiy/ ALM

A California Supreme Court advisory committee is weighing proposed amendments to judicial canons that would allow judges to speak publicly about a pending case if it's tied to election-related criticism of a judge.

Not surprisingly, many state judges think the proposed changes are a good idea.

Recently released public comments on the amendments to Canon 3B(9) drew praise from more than 250 current and retired judges. Many of them pointed to Santa Clara County Superior Court Judge Aaron Persky, who was recalled by voters in 2018 after he sentenced a Stanford University swimmer found guilty of sexual assault to six months in jail.

"The recall of Judge Persky from Santa Clara County need only be examined to see the pernicious effects of holding a judge mute in the face of repeated and widespread attacks on a single lawful decision made without bias," California Judges Association president B. Tam Nomoto Schumann said. "His inability to respond directly to the criticism created the perfect storm in the echo chamber of social media."

Not everyone who submitted a comment agreed with the proposed changes. Some individuals suggested judges should not say anything about a case after issuing a decision.

The Advisory Committee on the Code of Judicial Ethics, chaired by Justice Richard Fybel of the Fourth District Court of Appeal, is scheduled to meet Feb. 4 to consider the comments before making final recommendations on the amendments to the state Supreme Court. The changes, if approved, would take effect April 1.

Here are some of the comments submitted on the proposal.

>> Alliance of California Judges: "The proposed rule and commentary make it clear that judges should exercise restraint and no judge is compelled to make any public statement. We trust judges will carefully exercise this right. Judges may have more credibility than anyone else to speak to a controversial decision, and judges should be permitted to speak out freely on issues of judicial independence and the integrity of the judiciary. We urge the committee to restore to judges this important right of free speech."

>> Los Angeles County Superior Court Judge Paul Bacigalupo: "In the recent recall election of Judge Aaron Persky, the Commission on Judicial Performance took the unprecedented position of issuing a public report stating that Judge Persky committed no ethical violation in issuing the sentence in the criminal case that was subject of his recall election. However, because of the restrictions the Canons imposed on any judge from making a public comment that Judge Persky's decision was lawful and did not breach any ethical Canon, a judge, as the committee points out, may be reluctant to issue controversial decisions because they will not be able to defend themselves if attacked while the matter is pending. To allow any judge to comment on a judicial decision promotes public trust and confidence in the judiciary and the rule of law."

>> Sunil "Neil" Gupta, principal attorney to Chief Justice Tani Cantil-Sakauye: "I wonder whether it is easily ascertainable that a particular public comment by a judge, especially by the same judge who personally made the controverted decision, would have an effect on an impending proceeding, such as on an appeal of the very same decision."

Gupta made two other points, including: "The proposed amendments might unintentionally encourage judges to make less thorough records of their decision-making. … If adopted, the proposed amendment could de-incentivize a judge from providing a full explanation on the record for a particular ruling because any subsequent criticism of that ruling could be further explained through the judge's public comments."

And he added: "Finally … [w]ithout further definition, I am uncertain when precisely a 'recall campaign' would trigger the application of the proposed amendments. The language does not make clear whether a 'recall campaign' starts at the point at which signature collection has begun in order to qualify a recall measure on a ballot or whether the signature collection must be completed and verified to constitute the start of a 'recall campaign.'"

>> San Joaquin County Superior Court Judge Barbara Kronlund: "I think we can all agree that the successful and historic Persky recall was indeed a travesty of justice. Judge Persky could have been literally any judge, because all judges make controversial rulings from time to time. It doesn't mean the decisions are in any way unlawful, corrupt or biased ones; just unpopular in someone's opinion. And the real scary thing is that the people who want to oust a judge for one decision are almost always disgruntled litigants who could care less about the Rule of Law. Their sole goal is removal of the targeted judge, and they rarely let the true facts get in their way."

>> Retired Mendocino County Superior Court Judge James Luther: "Advice for a Judge About to Make an Unpopular Ruling. Explain it just once, Right there in your decision. Then sit down. Shut up."