CJEO Formal Opinion No. 2022-020 — Judicial Consultations with Other Judges

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2022-020
[Posted November 15, 2022]
JUDICIAL CONSULTATIONS WITH OTHER JUDGES
I. Question
What types of judicial conversations fall within the canon permitting judges to
consult with other judges under the California Code of Judicial Ethics? 1
II. Summary of Conclusions
Canon 3B(7)(a) expressly permits judges to consult with other judges subject to
limited exceptions. For instance, a judicial officer may not consult with judicial officers
1 All further references to the code, canons, terminology, and advisory committee
commentary are to the California Code of Judicial Ethics unless otherwise indicated.

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who are disqualified from the matter or who may be involved in appellate review of the
matter. (Ibid.)
The code does not define consultation; however, courts have interpreted the term
broadly. The committee interprets consultation to mean any conversation among judges
that assists a judicial officer in carrying out judicial functions, facilitates independent
decisionmaking, and does not otherwise violate the code. Permissible consultation need
not be phrased as a question or request for advice, initiated by the deciding judge, or
follow a particular format. Consultation may include a discussion of the facts or legal
issues in a case; however, a judge should make reasonable efforts to avoid receiving facts
that are outside of the record.
Judicial consultation may necessarily involve a discussion of facts, parties, or
witnesses that another judge might potentially encounter in a future proceeding; this is
permissible under the code. There is a presumption of honesty and integrity in the
judiciary, and judicial officers must be entrusted with the ability to disregard information
that would be inadmissible in their own matters.
III. Authorities
A. Applicable Canons
Canon 2A: “A judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary. A judge shall not make statements, whether public or nonpublic, that commit
the judge with respect to cases, controversies, or issues that are likely to come before the
courts or that are inconsistent with the impartial performance of the adjudicative duties of
judicial office.”
Canon 3B(5): “A judge shall perform duties without bias or prejudice.”
Canon 3B(7): “A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the full right to be heard according to law. Unless
otherwise authorized by law, a judge shall not independently investigate facts in a
proceeding and shall consider only the evidence presented or facts that may be properly
judicially noticed. This prohibition extends to information available in all media,
including electronic. A judge shall not initiate, permit, or consider ex parte

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communications, that is, any communications to or from the judge outside the presence
of the parties concerning a pending or impending proceeding, and shall make reasonable
efforts to avoid such communications, except as follows . . . .”
Canon 3B(7)(a): “Except as stated below, a judge may consult with other judges.
A judge presiding over a case shall not engage in discussions about that case with a judge
who has previously been disqualified from hearing that case; likewise, a judge who
knows he or she is or would be disqualified from hearing a case shall not discuss that
matter with the judge assigned to the case. A judge also shall not engage in discussions
with a judge who may participate in appellate review of the matter, nor shall a judge who
may participate in appellate review of a matter engage in discussions with the judge
presiding over the case.
A judge may consult with court personnel or others authorized by law, as long as
the communication relates to that person’s duty to aid the judge in carrying out the
judge’s adjudicative responsibilities.
In any discussion with judges or court personnel, a judge shall make reasonable
efforts to avoid receiving factual information that is not part of the record or an
evaluation of that factual information. In such consultations, the judge shall not abrogate
the responsibility personally to decide the matter.
For purposes of Canon 3B(7)(a), ‘court personnel’ includes bailiffs, court
reporters, court externs, research attorneys, courtroom clerks, and other employees of the
court, but does not include the lawyers in a proceeding before a judge, persons who are
appointed by the court to serve in some capacity in a proceeding, or employees of other
governmental entities, such as lawyers, social workers, or representatives of the probation
department.”
Advisory Committee commentary following canon 3B(7)(a): “Regarding
communications between a judge presiding over a matter and a judge of a court with
appellate jurisdiction over that matter, see Government Code section 68070.5. . . . [¶] . . .
[¶] This canon prohibits a judge who is presiding over a case from discussing that case
with another judge who has already been disqualified from hearing that case. A judge
also must be careful not to talk to a judge whom the judge knows would be disqualified
from hearing the matter.”
Canon 3B(9): “A judge shall not make any public comment about a pending or
impending proceeding in any court, and shall not make any nonpublic comment that
might substantially interfere with a fair trial or hearing.”
Advisory Committee commentary following canon 3B(9): “Although a judge is
permitted to make nonpublic comments about pending or impending cases that will not

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substantially interfere with a fair trial or hearing, the judge should be cautious when
making any such comments. There is always a risk that a comment can be misheard,
misinterpreted, or repeated. A judge making such a comment must be mindful of the
judge’s obligation under Canon 2A to act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary. When a judge makes a
nonpublic comment about a case pending before that judge, the judge must keep an open
mind and not form an opinion prematurely or create the appearance of having formed an
opinion prematurely.”
Canon 3E(4): “An appellate justice shall disqualify himself or herself in any
proceeding if for any reason . . . [¶] . . . [¶] (b) the justice substantially doubts his or her
capacity to be impartial . . . .”
Canon 3E(5): “Disqualification of an appellate justice is also required in the
following instances: [¶] . . . [¶] (f) The justice [¶] . . . [¶] (ii) has personal knowledge of
disputed evidentiary facts concerning the proceeding . . . .”
Canon 6A: “Anyone who is an officer of the state judicial system and who
performs judicial functions including, but not limited to, a subordinate judicial officer, a
magistrate, a court-appointed arbitrator, a judge of the State Bar Court, a temporary
judge, or a special master, is a judge within the meaning of this code. All judges shall
comply with this code except as provided below.”
Advisory Committee commentary following canon 6A: “For the purposes of this
canon, if a retired judge is serving in the Assigned Judges Program, the judge is
considered to ‘perform judicial functions.’ Because retired judges who are privately
retained may perform judicial functions, their conduct while performing those functions
should be guided by this code.”
B. Constitutional Provisions, Statutes, and Other Authorities
Code of Civil Procedure sections 170.1 and 170.3
Government Code section 68070.5
Withrow v. Larkin (1974) 421 U.S. 35, 47
People v. Farmer (1989) 47 Cal.3d 888, 923
People v. Hernandez (1984) 160 Cal.App.3d 725
Andrews v. State (Ind. Ct.App. 1987) 505 N.E.2d 815

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Commission on Judicial Performance, Public Admonishment of Judge Lisa A.
Novak (2018)
CJEO Formal Opinion 2021-016 (2021), Independent Investigation of Information
Contained in Electronic Case Management Systems, California Supreme Court
Committee on Judicial Ethics Opinions
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017) sections 5:9
and 5:50
Alabama Judicial Inquiry Commission Opinion No. 94-523 (1994)
Colorado Judicial Ethics Advisory Board Opinion No. 2004-02 (2004)
Geyh et al., Judicial Conduct and Ethics (6th ed. 2020) section 1.02
IV. Discussion
One of the tenets of our legal system is the independence of the judiciary. Judges
must make their own judicial decisions based on the record before them, free of external
pressures or influences. (Geyh et al., Judicial Conduct and Ethics (6th ed. 2020) § 1.02,
pp. 1–2 [judicial independence promotes the rule of law by insulating judges from
external sources of influence].) At the same time, judges must be allowed, when in doubt
or need of guidance, to ask questions or confer with judicial colleagues and supervisors to
help reach the right judicial result. (Rothman et al., Cal. Judicial Conduct Handbook (4th
ed. 2017) § 5:9, p. 274 (Rothman) [it is desirable for a judge faced with any question in a
case to discuss the matter, whether it relates to legal, substantive, or factual issues, with
other judges to aid the judge in arriving at a correct decision].) This opinion is intended
to provide guidance regarding the scope of permissible judicial consultation in light of
these competing concerns.
A. Scope of Judicial Consultation
While ex parte communications concerning facts, parties, or witnesses in a
pending matter are generally improper, the code expressly permits judicial officers to

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“consult with other judges.” (Canon 3B(7)(a).) 2 This express permission has limited
exceptions. For example, a judicial officer may not consult with judicial officers who are
disqualified from the matter or who may be involved in appellate review of the matter.
(Canon 3B(7)(a) &Advisory Com. commentary foll. canon 3B(7)(a) [a judge presiding
over a case shall not engage in discussions with a judge who is disqualified or involved in
appellate review; nor shall a judge who knows he or she would be disqualified or who
may be involved in appellate review engage in discussions with the judge presiding over
the case]; Code Civ. Proc., § 170.3(a)(1) [a judge who is disqualified shall not further
participate in the proceeding]; Gov. Code, § 68070.5 [when a case is appealed, there shall
be no communication direct or indirect between the judge who heard the case and any
judge of the reviewing court concerning the facts or merits of the case].)
The code does not define consultation; however, courts and other leading
authorities have interpreted the term expansively. (Rothman, supra, §5:9, p. 274
[interpreting judicial consultation broadly to include any communication that is otherwise
proper on any subject involving adjudication of the matter before the deciding judge].) In
People v. Hernandez (1984) 160 Cal.App.3d 725 (Hernandez), the court held that a
sentencing judge did not violate ethical rules or a criminal defendant’s due process rights
when the judge conferred with a judge in another jurisdiction regarding sentencing rules.
(Id. at p. 738–750.) The court found that it was “not inconsistent with public
expectations of the decisionmaking process or erosive of public confidence in the
2 Canon 3B(7)(a) does not define the phrase “other judges.” However, canon 6A
provides that a “judge” within the meaning of the code includes, “[a]nyone who is an
officer of the state judicial system and who perform judicial functions, including, but not
limited to, a subordinate judicial officer, a magistrate, a court-appointed arbitrator, a
judge of the State Bar Court, a temporary judge, or a special master.” The committee
interprets the phrase “other judges” in canon 3B(7)(a) to include anyone who would meet
the definition of a judge under canon 6A. This means that judges may consult with other
sitting judges within the state judicial system, but not retired judges except those who
perform judicial functions through the Temporary Assigned Judges Program. (Advisory
Comm. commentary foll. canon 6A [for purposes of canon 6A, a retired judge serving in
the Assigned Judges Program is considered to perform judicial functions].)

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judiciary” for judges to consult with one another. (Id. at p. 740.) Therefore, it was
proper for the judge to confer with another judge on legal concepts and even the
application of the facts to the law. (Id. at p. 742.)
In reaching its holding, the court gave great weight to the “presumption in the
honesty and integrity of our judicial officers.” (Hernandez, supra, 160 Cal.App.3d at p.
746, citing Withrow v. Larkin (1974) 421 U.S. 35, 47). The court found that the deciding
judge did not learn any facts outside the record during his consultation with the judge
from the other jurisdiction, and to the extent there was any risk of that occurring, judges
must be trusted to disregard such information. The court explained: “[W]e must depend
upon the integrity of the judge to reject that which he may not consider. The
circumstance is really not much different from our expectations of a judge who, in a court
trial, must exclude a confession and then proceed to determine a question of guilt or
innocence . . . .” (Hernandez, at p. 747.) The court also discussed the practical need for
judges to consult with another, noting the tremendous caseload burdens on judges and the
necessity of discussing issues with other judges and staff 3 to carry out judicial functions.
(Hernandez, at p. 739.) Rather than undermine public confidence in the judiciary, the
court found that such conversations furthered “governmental interests in a knowledgeable
judiciary” and “facilitate[ed] “the judiciary’s ability to exercise its discretion wisely.”
(Id. at p.749.) The Hernandez court recognized that ultimate responsibility for
decisionmaking rests with the deciding judge but found no evidence that the judge’s
consultation with his counterpart in another jurisdiction had interfered with the deciding
3 Hernandez refers to the importance of a judge being able to consult with other
judges, as well as a judge’s own law clerks. (Hernandez, supra, 160 Cal.App.3d at p.
739.) Distinct from consultations with other judges, discussions with court personnel are
addressed in a separate section of canon 3B(7)(a), which permits such discussions
provided they relate to the staff person’s duties to aid the judge. (Canon 3B(7)(a) [a
judge may consult with court personnel or others authorized by law, as long as the
communication relates to that person’s duty to aid the judge in carrying out the judge’s
adjudicative responsibilities].)

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judge’s independent judgment. To the contrary, the conversation served to “facilitate the
independent decision-making process rather than replace it.” (Id. at p. 750.)
This view of consultation is consistent with case law and advisory opinions from
other jurisdictions, which hold that judges may consult with one another provided they
retain sole discretion over their own decisionmaking and are not improperly influenced
by facts outside the record. (Andrews v. State (Ind. Ct.App. 1987) 505 N.E.2d 815, 826-
827 [judge did not exhibit prejudice by stating that he had discussed the admissibility of
offered evidence with other judges but made the decision solely on his own]; Colo. Jud.
Ethics Advisory Bd. Opn. No. 2004-02 (2004), p. 1 [permissible consultations are limited
to aiding a judge in reaching a final decision on a matter and should not actually
influence, or appear to influence, the judge who has final adjudicative responsibility];
Ala. Jud. Inquiry Com. Opn. No. 94-523 (1994), p. 1 [a judge is not disqualified for
conferring with another judge on a factual issue unless the judge obtained information
about disputed evidentiary facts and that information will influence the judge’s opinion
on the substantive merits of the case].)
In summary, the committee interprets consultation to include any conversation
among judicial colleagues that assists a judge in carrying out his or her judicial functions,
facilitates independent decisionmaking, and is otherwise consistent with the code.
Consultation need not be framed as a question, or initiated by the deciding judge, or
follow a particular format. Rather, consultation is broad enough to include those judicial
conversations necessary for the effective administration of justice and to enable judicial
officers to reach the correct judicial result, provided the judge retains ultimate
adjudicatory discretion. (Canon 3B(7)(a) [in consultations with other judges or court
personnel, the judge shall not abrogate responsibility to personally decide the matter].)
Consultation may include discussion of the facts or legal issues in a case. (Hernandez,
supra, 160 Cal.App.3d at p. 742; accord, People v. Farmer (1989) 47 Cal.3d 888, 923,
overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6
[collegial interchanges on abstract legal matters are not improper].) At the same time,
judges should make reasonable efforts to avoid receiving facts that are outside of the

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record in their own matters. (Canon 3B(7)(a) [in any discussion with judges or court
personnel, a judge shall make reasonable efforts to avoid receiving factual information
that is not part of the record or an evaluation of that factual information].)
B. The Novak Decision
In 2018, the Commission on Judicial Performance (CJP) disciplined a judge based
on remarks she made about a pending case in a judges’ meeting. 4 (CJP, Public
Admonishment of Judge Lisa A. Novak (2018) pp. 7–9 (Novak).) The CJP found that
although the judge’s statements were directed to her judicial colleagues, the statements
did not fall within the canon permitting judicial consultation, might substantially interfere
with a fair trial or hearing, and called into question the judge’s impartiality and gave an
appearance of bias and embroilment. (Id. at pp. 8–9.) In the committee’s view, the
Novak decision does not narrow the scope of permissible consultation.
In Novak, a judge attended a superior court judges’ meeting and announced to all
assembled that she had made a finding at a motion hearing in a criminal case that a
particular sergeant in the sheriff’s office had perjured himself. The judge described the
hearing in detail and stated that she was sharing this information with the other judges as
an “FYI,” and they could do with it as they wished. Later, in her defense to the CJP, the
judge stated that she believed her disclosure of her findings on the sergeant’s credibility
was “mandated” due to the close relationship between the court and the sheriff’s office.
(Novak, supra, at pp. 7–9.) The CJP found the judge’s conduct improper for a
constellation of reasons, noting that, “although judges are permitted to consult with each
other and assist in their adjudicative responsibilities,” the judge “was not consulting with
other judges and seeking their advice, but was instead informing them of her evaluation
4 In the same decision, the CJP admonished the judge for two separate and unrelated
incidents of improper conduct. (Novak, supra, at pp. 1, 9.)

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of the evidence in a pending case and potentially impairing their independence and
impartiality.” (Id. at p. 8, italics added.)
Having determined that the judge’s statements did not fall within the scope of
consultation, the CJP found that the judge’s comments potentially violated the express
prohibition against discussing matters with judges who may be involved in appellate
review and interfered with the duty of other judges (who might hear later proceedings in
the same case) to make reasonable efforts to avoid information outside the record in their
own matters under canon 3B(7)(a). (Novak, supra, at p. 8.) 5 The judge’s indiscriminate
comments to a large gathering of judges also constituted nonpublic comments that might
substantially interfere with a fair trial or hearing in violation of canon 3B(9) [judges shall
not make public comments about a pending proceeding or nonpublic comments that
might substantially interfere with a fair trial or hearing].) (Novak, supra, at p. 8;
Advisory Com. commentary foll. canon 3B(9) [a judge making a nonpublic comment
must be mindful of the judge’s obligation under Canon 2A to act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary].)
Finally, the judge’s comments exhibited bias and embroilment in violation of canons 2A
and 3B(5). (Novak, supra, at p. 9.)
Novak does not change the committee’s view that, as discussed above, judicial
consultation may necessitate and properly include a discussion of the law or facts of a
5 As a corollary to canon 3B(7)(a)’s requirement that judges make reasonable
efforts to avoid receiving facts outside the record, canon 3B(7) specifies that judges
“shall not independently investigate facts in a proceeding and shall consider only the
evidence presented or facts that may be properly judicially noticed.” The policy reasons
for both requirements are the same: preservation of judicial impartiality and protecting
the parties’ due process rights. (CJEO Formal Opinion 2021-016 (2021), Independent
Investigation of Information Contained in Electronic Case Management Systems, Cal.
Supreme Ct. Com. Jud. Ethics Opns., p. 8 [a judge who engages in independent fact
finding may demonstrate a lack of impartiality or embroilment and, if the judge relies on
information obtained from an independent investigation, deprive a party of the
opportunity to confront and respond to certain evidence].)

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particular case. Judges within the same court, and particularly judges in criminal
divisions, may regularly encounter similar fact patterns and the same parties, lawyers,
witnesses, and experts. The code cannot be read so strictly that a deciding judge may not
consult with another judge on any matter for fear that the second judge might one day,
hypothetically, need to decide similar facts or assess the credibility of the same witnesses.
Even if a judge were, in the course of consultation, inadvertently exposed to facts or an
assessment of witnesses that the judge would later have to adjudicate in some manner,
judicial officers are trusted to disregard such information as they would any other
inadmissible evidence. 6 (Hernandez, supra, 160 Cal.App.3d at p. 747; Rothman, supra,
§ 5:50, p. 314 [a competent judge has the ability to hear many things that might be
disregarded in reaching a final decision].) However, in the Novak matter, the judge made
a pronouncement about the credibility of a witness with no consultative purpose, which
had more than a hypothetical risk of substantially interfering with a fair trial or hearing
given the audience and created the appearance of embroilment. Such conduct is
antithetical to the reason the code expressly permits judicial officers to consult with other
judges, which is to assist judges in carrying out their judicial responsibilities impartially.
V. Conclusion
Judicial officers may consult with one another any on any matter, provided the
judge being consulted is not disqualified or involved in appellate review of the matter.
6 In the unusual circumstance that a judge being consulted on a factual or legal issue
was exposed to a fact or assessment of a witnesses that the judge determined he or she
could not disregard in a later proceeding, the judge may need to disqualify from the later
proceeding. (Canon 3E(4)(b) [appellate justice shall disqualify if the justice substantially
doubts his or her capacity to be impartial; Code Civ. Proc., §170.1, subd. (a)(6)(A) [same
rule for trial court judges]; canon 3E(5)(f)(ii) [appellate justice shall disqualify if the
justice has personal knowledge of disputed facts]; Code Civ. Proc., § 170.1, subd.
(a)(1)(A) [same rule for trial court judges].) However, in the committee’s view, the
policy reasons for permitting judges to consult with one another outweigh the risk that
such a circumstance may arise on rare occasion.

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While consultation is not defined in the code, courts have interpreted it broadly. The
committee interprets consultation to include any conversation among judicial colleagues
that assists a judge in carrying out his or her judicial functions, facilitates independent
decision-making, and is otherwise consistent with the code. Consultation may include a
discussion of the facts or the law. However, judges should make reasonable efforts to
avoid facts outside the record in their own matters. Even if a judicial officer, in the
course of permissible consultation, is inadvertently exposed to facts or an assessment of
the credibility of witnesses that the judicial officer may later have to adjudicate in some
manner, there is a presumption in the integrity of judicial officers and their ability to
disregard inadmissible information.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this opinion are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)