CJEO Oral Advice Summary No. 2018-026 — Soliciting Endorsements from Trial Court Judges for Other Appellate Court Justices Subject to Retention Elections

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2018-026
[Issued November 2, 2018]
SOLICITING ENDORSEMENTS FROM TRIAL COURT JUDGES FOR OTHER
APPELLATE COURT JUSTICES SUBJECT TO RETENTION ELECTIONS
I. 	Question Presented:
May a presiding justice (PJ) of a Court of Appeal contact superior court presiding judges
within the PJ’s appellate district to solicit campaign endorsements for other appellate court
justices facing retention elections. When soliciting the presiding judges, the PJ also intends to
ask each presiding judge to solicit endorsements from every judge on the presiding judge’s trial
court on behalf of the justices seeking retention.

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II. 	Oral Advice Provided:
Subject to certain restrictions, canon 5B(4) of the California Code of Judicial Ethics 1
permits a judge to solicit campaign contributions or endorsements for his or her own campaign
and on behalf of other judges and attorneys who are candidates for judicial office. Judges are
uniquely knowledgeable about the necessary and ideal qualifications of a judge based on their
own experience on the bench. Judges also have particular knowledge about the qualifications of
certain judicial candidates based on their personal experience as colleagues or from participating
in review of their work. (Advisory Com. com. foll. canon 5A [judges are in a unique position to
know the qualifications necessary to serve as a competent judicial officer].) Based on a judge’s
unique position to evaluate candidates, the judiciary and public benefit when a judge endorses a
qualified candidate. Moreover, if a judge who is already endorsing a candidate based on the
candidate’s qualifications can solicit and obtain additional endorsements from other judges who
similarly believe the candidate is well qualified, there is a greater likelihood that a highly
qualified candidate will be retained or elected. Electing or retaining highly qualified judges
promotes the integrity of and public confidence in the judiciary. (Canon 1 [an honorable
judiciary is indispensable to justice in our society].)
There is a blanket prohibition on certain campaign-related solicitations, as well as two
additional limitations a judge must consider. A judge is prohibited from soliciting campaign
contributions or endorsements from certain subordinate judicial officers 2 or from California
state court personnel in all circumstances. (Canon 5B(4).) When soliciting campaign
endorsements from anyone else, including other judges, a judge may not use the prestige of
judicial office in a manner that would reasonably be perceived as coercive and the solicitation
must conform to the other obligations within the code, including that any such activity promote
judicial independence, integrity, and impartiality. (Canons 2A [judges must act at all times in a
1 All further references to canon or canons, the code, and the Advisory Committee commentary
are to the California Code of Judicial Ethics unless otherwise indicated.
2 Specifically, canon 5B(4) prohibits solicitation of campaign endorsements from California
state court commissioners, referees, court-appointed arbitrators, hearing officers, and retired
judges serving in the Assigned Judges Program.

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manner that promotes public confidence in the integrity and impartiality of the judiciary], 2B(1)
[judges must not convey that any individual is in a special position of influence], 3 [judicial
duties must take precedence over all other activities], 5 [judicial independence, impartiality, and
integrity must dictate the conduct of judges engaged in political activity].)
There is a risk that anyone a judge solicits for a campaign endorsement will feel obligated
to make the endorsement, regardless of whether the request is made by the judicial candidate or
on behalf of the judicial candidate. This risk may be greater and there may be a perception of
coercion when the soliciting judge is in a position of influence or control over the person being
solicited. For this reason, canon 5B(4) prohibits judges from soliciting campaign endorsements
from certain subordinate judicial officers and court staff in all circumstances. (Advisory Com.,
Invitation to Comment SP18-08 (2018) p. 3 [a court employee or subordinate judicial officer
would likely feel pressure to endorse a judge’s campaign].) The concerns that justify this
blanket prohibition on soliciting certain subordinate judicial officers and court staff do not
similarly support a blanket prohibition on appellate court justices soliciting trial court judges.
The relationship between an appellate court justice and a trial court judge differs from the
relationship between a judge and a subordinate judicial officer or other court staff. Appellate
court justices do not supervise the work of trial court judges in an employer-employee context.
They do not have influence or control over trial court judges in the manner that trial court judges
may control subordinate judicial officers and court staff. As such, a blanket prohibition is not
justified.
Any judicial officer soliciting an endorsement must also consider the other two
limitations on solicitation of campaign endorsements; whether the particular solicitation creates
a perception of coercion and whether it could cause doubts regarding judicial independence,
integrity, or impartiality. Both these concerns are heightened in the narrower question of
whether a PJ may solicit campaign endorsements from trial court presiding judges in the PJ’s
district, especially where the solicitation also requests the presiding judges to solicit
endorsements from other judges on the presiding judge’s court.
A PJ has additional supervisory responsibilities related to the court. (See, e.g., canon
3C(4) [a judge with supervisory authority shall take reasonable measures to ensure other judges

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properly perform their judicial responsibilities].) At a minimum, these responsibilities
demonstrate that the PJ is in a leadership position and creates a perception that any request by
the PJ will be seriously considered and most likely followed by other justices and trial court
judges, including presiding judges. Therefore, a PJ should be cognizant of his or her heightened
leadership position when soliciting endorsements to avoid the perception that the solicited judge
was coerced to make an endorsement based on the PJ’s position within the court.
The PJ should also consider whether the proposed solicitation could create doubts
regarding the independence, integrity, or impartiality of the judiciary. (Canon 1 [a judge shall
uphold the integrity and independence of the judiciary].) Appellate courts oversee trial court
decisions, and a trial court judge may have a case that is pending review by the appellate court
justice soliciting an endorsement. If an appellate court justice solicits an endorsement for his or
her own campaign or for another candidate for judicial office while actively reviewing the trial
court judge’s decision, a reasonable person aware of this fact could doubt the justice’s capacity
to be impartial in that matter. (Canon 3E(4)(c) [disqualification required in circumstances where
a reasonable person aware of the facts would doubt a justice’s ability to be impartial].) These
concerns of impartiality are again compounded when the solicitation is made by a PJ who has
supervisory authority over all of the cases within his or her appellate district or division.
The proposed mass solicitation by the PJ to every trial court presiding judge to endorse
the justices seeking retention with the additional request that the presiding judge solicit every
trial court judge on the PJ’s behalf heightens the concerns of coercion and impartiality to a
degree that is impermissible. Looking at the solicitation from the perspective of the solicited
trial court judge or a reasonable person aware of the solicitation, the solicitation is from a
presiding judge, the solicitation seeks an endorsement of every appellate court justice facing a
retention election, and the solicitation originally came from the PJ on behalf of those justices.
Also, the solicitation asks for an endorsement of each justice seeking retention without
evaluating a justice’s individual qualifications. The proposed mass solicitation uses the prestige
of the PJ’s office in a manner that would reasonably be perceived as coercive and is prohibited
by canon 5B(4). It would also result in an overall decrease in the perceptions of judicial
independence, integrity, and impartiality.

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
This oral advice summary 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
rules 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)).