Maria Dinzeo, writing for Courthouse News Services on Nov. 10, reported that inaccurate news reporting, ad hominem attacks through social media and a basic lack of understanding about the judicial branch are the reasons for the California Supreme Court’s proposed change to the traditional gag order on judges in pending matters.
Dinzeo mentions the case of Santa Clara Superior Court Judge Aaron Persky, who was recalled by voters for sentencing a convicted rapist to six months in jail, even though it was at the recommendation of the court’s probation department and a legal sentence. If Judge Persky had been allowed to respond to criticism of his sentence, could he have survived the recall election?
Generally, judges may not comment publicly on pending cases, and/or issues of public concern. California’s proposed rule change seems to be designed to “level the playing field” for judges when it involves criticisms of their decisions. And therein lies the problem with this proposal – judges should never set foot on the playing field. Judges should never voluntarily engage in any adversarial process or public controversy.
If a party or attorney is unhappy with a trial judge’s decision and complains in front of the cameras or pens an angry letter to the newspaper, should a judge respond? No. The judge explained his or her decision in the courtroom. The judge’s job is done at that point. A judge should never participate in a party’s attempt to retry the case in the court of public opinion. It serves no legitimate purpose, and it accomplishes nothing. There are no rules in the court of public opinion, just chaos.
If a judge’s decision angers many people who vent on social media, should the judge clarify, modify or otherwise justify his or her decision to the community as a whole? Again, no. The judge’s decision was reached through due process, based upon the evidence and applicable law. The judge must now stand by his or her decision, come what may. The judge’s duty is to uphold the law, not to garner votes or seek public approval.
The real problem with allowing, even encouraging, judges to respond to public criticism is that it debases the judge and the judicial branch. A judge would morph from an impartial tribunal to an advocate or politician, and thus his or her future effectiveness as a fair and impartial member of the judiciary would be significantly diminished.
And I am not sure that a rule change like the one the California Supreme Court is considering is even necessary. Most courts have spokespersons who can contact the media when inaccurate, confusing or incomplete information has been released to the public. These media liaisons can provide clarification, and seek corrections and/or retractions, if appropriate. No direct involvement by judges is necessary.
I respect the California Supreme Court’s good intentions in looking for a way to protect its judges from inaccurate, dishonest and/or misleading attacks which are so typical now on the information superhighway. Nevertheless, permitting judges to abandon their impartiality and become part of the adversarial process is not the answer.
There are two courts in this country. The first is the court of law, which operates according to constitutional principles, laws and rules of evidence and procedure. The other court is the court of public opinion, which operates in chaos, drama, hysteria, sensationalism and hearsay and innuendo. As a duly sworn and elected judge, I carry out my duties in the court of law, and I cannot and should not participate in the court of public opinion.
I wish everyone a safe, warm and happy holiday season and a banner 2020!
Judge Daniel Ramczyk is a judge of the Second Judicial District Court. Opinions expressed here are solely those of the judge individually and not those of the court.