Ethics Committee Seeks Public Comment: Ex Parte Communications While Investigating Complaint Against Judge

The California Supreme Court Committee on Judicial Ethics Opinions invites public comment on a draft opinion about the duties of a presiding judge or other judge with supervisory duties when investigating a complaint filed against a trial judge.

CJEO Draft Formal Opinion 2020-015 advises a supervising judge may communicate with a trial court judge about the complaint—including referring to specific facts or circumstances related to the proceeding (an “ex parte communication”)—as part of their oversight duty when there is no other way to properly investigate and respond to the complaint.

The draft opinion also lays out a roadmap for supervising judges investigating complaints against trial court judges, including:

• If disclosure is required, the supervising judge should only reveal to the trial judge what is necessary to investigate the allegations, remediate any harm, or improve the trial judge’s future conduct;
   
• The supervising judge should take reasonable measures to ensure the trial judge follows proper procedure and corrective action so the disclosure does not affect the trial judge’s impartiality or the fairness of pending proceedings;
   
• If the trial judge persistently fails to carry out directives, the supervising judge should enlist the presiding judge to instruct and encourage the trial judge to comply and then, in appropriate circumstances, inform the Commission on Judicial Performance of the trial judge’s failure to fulfill their ethical duties.

The draft opinion and invitation to comment are posted on the committee’s website. The deadline for comment is Oct. 13.

All comments submitted to the committee are confidential communications and precluded from disclosure unless confidentiality is waived. (Cal. Rules of Court, rule 9.80(h); CJEO Internal Operating Rules and Procedures, rule 5(b), (e).) Those comments submitted with a waiver of confidentiality will be posted for public view on the CJEO website at the close of the comment period. All comments the committee receives will be carefully considered by the CJEO members when finalizing and approving the opinion.

After considering the public’s comments on the draft opinion, the committee will decide whether to publish an opinion in final form. Comments are due by Oct. 13 and may be submitted:

• Online using this Comment Form;
• By email to Judicial.Ethics@jud.ca.gov; or
• By mailing comments to Ms. Nancy Black, Committee Counsel, The California Supreme Court Committee on Judicial Ethics Opinions, 350 McAllister Street, San Francisco, California 94102.

About the Committee on Judicial Ethics Opinions (CJEO)
The Committee on Judicial Ethics Opinions is a 12-member advisory committee that includes appellate justices, trial court judges and commissioners. The committee is appointed and authorized by the California Supreme Court, but its work is independent of the court, the Judicial Council, and all other entities. Its opinions are advisory and do not necessarily reflect the views of the California Supreme Court or any other entity. 

The committee issues formal opinions, informal opinions, and oral advice on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities. CJEO summarizes its oral advice and posts the summaries on the CJEO website for the benefit of the bench and the public.