The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft formal opinion adopted by the committee and approved posting and public comment pursuant to California Rules of Court, rule 9.80(j)(2) and CJEO Internal Operating Rules and Procedures, rule 7(d). (Rule 9.80; CJEO Rules.) The public is invited to comment on the draft opinion before the committee considers adoption of an opinion in final form.
CJEO Draft Formal Opinion 2018-014 advises that the prohibition on independent investigations set forth in canon 3B(7) of the California Code of Judicial Ethics extends to a search performed on a court’s case management system (CMS). A judge may perform a CMS search if the search is limited to documents or other information in the case assigned to the judge, if the search is authorized by law, or if the search results are can be judicially noticed. Even where a CMS search complies with canon 3B(7), the judge should consider whether the fact of the search may create an appearance of bias.
The draft opinion also advises that if a judge performs an impermissible CMS search or discovers information that cannot be judicially noticed, the judge must evaluate whether the judge is biased or there is an appearance of bias warranting the judge’s disqualification. If not, the judge should disclose to the parties that the judge searched the CMS and disclose any information that the judge reviewed. The judge should also provide the parties with an opportunity to respond to the information.
After receiving and reviewing comments, the committee will decide whether the draft opinion should be published in its original form, modified, or withdrawn. (Rule 9.80(j)(2); CJEO rule 7(d).) Comments are due by May 15, 2019.
Comments submitted in response to this Invitation to Comment are confidential communications to the committee and precluded from disclosure under the CJEO rules. (Rule 9.80(h); CJEO rule 5(b).) However, confidentiality may be waived under those rules (Rule 9.80(h)(3); CJEO rule 5(b)(1), (e)) and the committee will post on the CJEO website, at the close of the comment period, any comments submitted with a statement of waiver of confidentiality or consent to disclose.