California judges can now defend criticisms of their rulings during elections
A successful recall election removed Aaron Persky from the bench in 2018. (Photo by Jason Doiy/The Recorder via AP)
A recent California judicial ethics opinion allows judges to speak out publicly during an election or recall campaign as long as their comments do not affect the outcome or fairness of a case.
Formal Opinion 2024-027 was published by the California Supreme Court Committee on Judicial Ethics Opinions. It gives judges the freedom to respond if one of their decisions is criticized in connection to a judicial election or recall campaign as long as their comments do not violate other ethical obligations under the California Code of Judicial Ethics. That includes judges’ duties to avoid impropriety.
David Majchrzak serves as president-elect of the Association of Professional Responsibility Lawyers and represents California judges in disciplinary proceedings. The partner with San Diego’s Rosing Pott & Strobehn says it’s important that judges be able to respond to critics of their opinions and rulings in order to help preserve confidence in the judiciary.
“It can be too easy to criticize judges knowing they can’t say anything back,” he says. “That feels somewhat unfair if they can’t say, ‘Here’s how I got to where I did in that case.’”
According to Majchrzak, issues often arise with someone who had a bad experience in a judge’s courtroom.
“Being able to provide context can only help voters,” Majchrzak adds. Voters “can ask themselves, ‘Is this someone with an ax to grind, or are they making a legitimate point?’”
The judicial ethics opinion is in large part a reaction to the 2018 recall of Santa Clara Superior Court Judge Aaron Persky. It was the first successful recall of a California judge in 86 years.
In 2016, Persky handed down a six-month sentence to former Stanford University swimmer Brock Turner after Turner’s conviction for the sexual assault of an unconscious woman outside an on-campus fraternity party. Persky said in his decision that he followed the county probation department’s recommendation when he sentenced Turner. But critics lamented that the sentence was too lenient. The ethics rules at that time prohibited Persky from making public comment on the case.
“The problem with this recall is it will pressure judges to follow the rule of public opinion as opposed to the rule of law,” Persky told the Associated Press in May 2018, shortly before the recall election.
We’ll never know if the outcome would have been different with the recent ethics opinion, says Jim McManis, Persky’s former attorney.
“But if he had the ability to explain himself, it might have made a difference. Aaron Persky has taken the high road his entire life, and [the recall campaign] was like a knife fight,” adds McManis, a partner with McManis Faulkner in San Jose, California.
“I’m glad to see this opinion has come out and hope it helps someone in the future,” he adds.
Michele Dauber, a Stanford Law School professor, has been described by the Mercury News as the person who spearheaded the recall campaign.
She notes that Persky did do press interviews toward the end of the campaign and claims that they didn’t help him. Additionally, she says his campaign representatives made “disturbing, victim-blaming comments,” and Persky did not condemn them.
“I think that told the public everything they needed to know about Persky’s poor judgment, which is why Santa Clara County voted him out of office in a landslide,” Dauber adds.
Out of 329,308 votes, 61.6% were in favor of the recall, according to Ballotpedia.
Will the forum matter?
Left unsaid is precisely where judges may voice their responses. Would going on CNN or some other network, for instance, be permitted?
“I didn’t read the opinion as precluding media appearances,” says Scott Cummings, a professor at UCLA School of Law. “Their comments would just have to be limited to the specific facts of the case [for which the judge was criticized] so they wouldn’t raise concerns on a different case,” adds Cummings, founding faculty director of the UCLA Program on Legal Ethics and the Profession.
Media appearances might be beneficial, depending on the circumstances, according to ethics professor Renee Knake Jefferson, who teaches at the University of Houston Law Center.
“It may very well be that a judge commenting in a major news outlet is what is needed to correct misinformation so that the public can be informed when they go to vote in a judicial election or recall,” she says.
But Gabe Roth, executive director of Fix the Court, an advocacy group that seeks reform of the U.S. federal court system, suggested that judges need to proceed cautiously.
“You don’t want judges doing daily hits on MSNBC or Fox News. Defending yourself and responding to attacks is great, but you shouldn’t be trying to make a national name,” he says.
Since the forum does not matter under the California opinion, it would presumably be fair game for judges to respond via social media platforms. But there too, the comments would need to be limited in their scope.
In 2018, the California Supreme Court added commentary to Canon 2A of the state’s code of judicial ethics stating that a judge must exercise caution if using social media or posting online, considering that electronic communications are likely permanent and accessible to many.
There needs to be a balance between free speech and the appearance of bias, as is the case with their other public communications, Cummings says.
“There are a lot of details that remain unresolved and will get worked out as judges experiment with methods of persuasion,” he adds.
But what about criticism of judgesoutside of the judicial election or recall realm?
President Donald Trump, for instance, has verbally attacked judges with whom he disagrees. That includes New York County Supreme Court Justice Juan Merchan, who presided over his May 2024 conviction on 34 felony counts of falsified business records; and U.S. District Judge Gonzalo P. Curiel of the Southern District of California, whom Trump said could not be impartial in a case involving his border wall because Curiel is “Mexican.”
Neither of those scenarios are addressed in the California judicial ethics opinion. Cummings suggested that judges would not be the best individuals to respond.
“When public figures are attacking opinions, it’s much dicier for judges to weigh in,” he explains.
Roth agrees.
“Judge Merchan probably shouldn’t answer if the New York Times calls, but he probably could speak about it at an ABA educational event,” Roth says.
Majchrzak acknowledged the importance of judges maintaining an even-handed approach. He also expressed concerns that the public will hear comments about the judiciary from public figures more loudly and frequently than others.
“The judge criticized by Donald Trump was somewhat handcuffedby what he could say and was reliant on others to speak out. It’s a shame our bench has to rely on others to defend it, which is less than ideal,” Majchrzak says.
This story was originally published in the April-May 2025 issue of the ABA Journal under the headline: “Talking Points: California judges can now defend criticisms of their rulings if the digs are campaign-related.”
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