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.