CJEO Oral Advice Summary No. 2015-010 — Service by an Appellate Justice as a Compliance Officer in Pending Federal Proceedings

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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 No. 2015-010
[Posted June 17, 2015]
SERVICE BY AN APPELLATE JUSTICE AS A COMPLIANCE OFFICER IN
PENDING FEDERAL PROCEEDINGS
I. Question:
Does the California Code of Judicial Ethics prohibit a recently nominated Associate
Justice of the California Court of Appeal from continuing to serve as a Prison Compliance
Officer in pending federal proceedings concerning overcrowding conditions in the California
prison system?1
II. Oral Advice Provided:
The question of whether an appellate justice may serve as a Prison Compliance Officer
appointed by a federal court panel in pending federal proceedings involving overcrowding in the
California prison system raises both legal issues under the California Constitution and ethical
issues under the California Code of Judicial Ethics. The Supreme Court Committee on Judicial
1 Limited identifying information is included in this oral advice summary because
confidentiality has been waived by the requesting party (Cal. Rules of Court, rule 9.80(h)(3);
CJEO rules, rule 5(e)).

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Ethics Opinions (CJEO) has no authority to provide legal advice and declines to do so. It is the
responsibility of the appellate justice requesting ethical advice from CJEO to obtain a legal
opinion about whether simultaneous service is permissible under article 7, sections 7 & 17, of
the California Constitution.
Assuming for the purposes of this opinion that there are no constitutional impediments,
the question is whether the California Code of Judicial Ethics prohibits a state court appellate
justice from serving as a prison compliance officer under court order in federal litigation
involving overcrowding in the California prison system.
Simultaneous service would not be strictly prohibited under canons 1 or 2 because a
person aware of the federal court position would not have reason to doubt the justice’s
impartiality or independence in state appellate matters generally. (Cal. Code Jud. Ethics, canons
1 & 2; Advisory Com. commentary, foll. canon 2A [test for appearance of impropriety is
whether a person aware of the facts might reasonably entertain doubt that the judge would be
able to act with integrity, impartiality, and competence].) More specific canons addressing
extrajudicial involvement in governmental activities and the disqualification requirements of
appellate justices also do not prohibit simultaneous service, however, those canons raise issues
for consideration by the appellate justice during the course of that service.
Federal court appointment as a Prison Compliance Officer is an extrajudicial activity
involving the law, the legal system, and the administration of justice, which is excepted from the
prohibitions against appearing before public officials or accepting governmental positions in
canons 4C(1) & (2). The appropriateness of continuing such an excepted extrajudicial
assignment must be assessed by the appellate justice in light of the demands on his time and the
potential for interference with his effectiveness and independence. (Advisory Com.
commentary, foll. canon 4C(2); Canon 3A [“judicial duties … shall take precedence over all
other activities ….”].)
Similarly, the disqualification canons do not strictly prohibit simultaneous service,
however, the potential for disqualification under canon 3E(5)(f)(ii) and the frequency of
disqualification under canon 4A(4) must be considered by the appellate justice when assessing
the appropriateness of continuing to serve in the federal court Prison Compliance Officer

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position. The extent to which the justice might be disqualified based on personal knowledge of
disputed evidentiary facts about individuals and circumstances in the California prison system
gained while serving as the Prison Compliance Officer is only speculative. Continued service is
not precluded until the justice makes such a disqualification decision in a specific matter before
him as an appellate justice. (Kaufman v. Court of Appeal (1982) 31 Cal.3d 933, 937-940 [each
appellate justice decides whether the facts require recusal, subject only to higher court review
for bias or unfairness in the appellate proceedings].)
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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)).