CJEO Formal Opinion No. 2020-015 — Supervising Judge’s Duties When a Party Complains About a Judge in a Pending Matter

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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 Formal Opinion 2020-015
[Issued November 5, 2020]
SUPERVISING JUDGE’S DUTIES WHEN A PARTY COMPLAINS ABOUT
A JUDGE IN A PENDING MATTER
I. 	Question Presented
When may a supervising judge 1 ethically disclose to a trial judge an ex parte
communication made in connection with a complaint against the trial judge?
1 	Presiding judges and other judges who have been delegated responsibility to
supervise judicial officers are referred to in this opinion collectively as “supervising
judges.” The term “supervising judges” includes judges who have been designated by
their presiding judge to supervise a division, district or branch court pursuant to
California Rules of Court, rule 10.603(b)(1)(A), as well as judges who have been
delegated supervisory responsibilities by their presiding judge pursuant to rule 10.603(d).

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II. 	Summary of Conclusions
Supervising judges may disclose an ex parte communication to a trial judge in the
discharge of their duty of oversight, but they should do so only when there is no
alternative way to properly investigate and respond to a complaint. It would be
preferable not to disclose ex parte communications to the trial judge if the complaint can
be properly investigated and resolved without such disclosure, or if the disclosure can be
delayed until the case from which the complaint arises is no longer pending, and no
further proceedings in the case before the trial judge are anticipated. If the disclosure of
the ex parte communication to the trial judge is required, then the supervising judge
should only reveal information that is necessary to investigate the allegations of the
complaint, remediate any harm relating to the complaint, or improve the trial judge’s
conduct in the future. If an ex parte communication is disclosed, the supervising judge
remains responsible to take reasonable measures to ensure that the trial judge follows
proper procedures that may be required by the disclosure of the ex parte communication
to the trial judge.
III. 	Authorities
A. 	Applicable Canons 2
Canon 1: “An independent, impartial, and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing, maintaining, and
enforcing high standards of conduct, and shall personally observe those standards so that
the integrity and independence of the judiciary is preserved.”
Canon 2A: “A judge shall respect and comply with the law and shall act at all
times in a manner that promotes confidence in the integrity and impartiality of the
judiciary.”
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
2 	All further references to code, canons and to Advisory Committee commentary are
to the California Code of Judicial Ethics unless otherwise indicated.

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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. . . . A judge shall not initiate, permit, or consider ex parte
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:
“(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.
“[¶] . . . [¶] 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.
“[¶] . . . [¶] (b) A judge may initiate, permit, or consider ex parte communications,
where circumstances require, for scheduling, administrative purposes, or emergencies
that do not deal with substantive matters provided: [¶] (i) the judge reasonably believes
that no party will gain a procedural or tactical advantage as a result of the ex parte
communication, and [¶] (ii) the judge makes provision promptly to notify all other parties
of the substance of the ex parte communication and allows an opportunity to respond.
“(c) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so or when authorized to do so by stipulation of the
parties.
“(d) If a judge receives an unauthorized ex parte communication, the judge shall
make provision promptly to notify the parties of the substance of the communication and
provide the parties with an opportunity to respond.”
Canon 3C(1): “A judge shall diligently discharge the judge’s administrative
responsibilities impartially, on the basis of merit, without bias or prejudice, free of
conflict of interest, and in a manner that promotes public confidence in the integrity of
the judiciary.”
Canon 3C(3): “A judge shall require staff and court personnel under the judge’s
direction and control to observe appropriate standards of conduct and to refrain from (a)
manifesting bias, prejudice, or harassment based upon race, sex, gender, gender identity,*

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gender expression, religion, national origin, ethnicity, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation, or (b) sexual harassment in
the performance of their official duties.”
Canon 3C(4): “A judge with supervisory authority for the judicial performance of
other judges shall take reasonable measures to ensure the prompt disposition of matters
before them and the proper performance of their other judicial duties.”
Canon 3D(1): “Whenever a judge has reliable information that another judge has
violated any provision of the Code of Judicial Ethics, that judge must take appropriate
corrective action, which may include reporting the violation to the appropriate authority.”
ADVISORY COMMITTEE COMMENTARY: Canons 3D(1) . . . . “[¶] Appropriate
corrective action could include direct communication with the judge . . . who has
committed the violation, writing about the misconduct in a judicial decision, or other
direct action, such as a confidential referral to a judicial . . . assistance program, or a
report of the violation to the presiding judge, appropriate authority, or other agency or
body. . . . [¶] ‘Appropriate authority’ means the authority with responsibility for
initiation of the disciplinary process with respect to a violation to be reported.”
B. 	Other Authorities
Code of Civil Procedure, sections 170.3, subdivision (b), 170.4, subdivision (c).
California Rules of Court, rules 10.603(b)(1)(A), (c)(4), (d), 10.703(g).
California Standards of Judicial Administration, standard 10.20(d).
Alameda County Superior Court, Local Rules, rule 2.0.
Contra Costa County Superior Court, Local Rules, rule 2.150.
San Diego County Superior Court, Local Rules, rule 1.2.1.
San Francisco Superior Court, Local Rules, rule 2.6.
Inquiry Concerning Schnider (Aug. 31, 2009) <https://cjp.ca.gov/wp-
content/uploads/sites/40/2016/08/Schnider_DO_08-31-09.pdf> (as of Nov. 5,
2020).
Inquiry Concerning Velasquez (2007) 49 Cal.4th CJP Supp. 175.
Inquiry Concerning Ross (2005) 49 Cal.4th CJP Supp. 79.

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Inquiry Concerning Platt, (2002) 48 Cal.4th CJP Supp. 227.
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017) sections 5:2,
6:2.
Commission on Judicial Performance, Annual Reports for 2011, 2010, 2009,
2002, 2000, 1998, 1995, 1994, 1993, 1992, 1990 and 1988.
California Judges Association, Judicial Ethics Update (Jan. 2016).
IV. 	Discussion
Supervising judges are required to exercise proper oversight of the judicial officers
they supervise, regardless of the size of their court or the way in which supervisorial
duties are delegated within the court. (Canon 3C(4); Cal. Rules of Court, rule
10.603(c)(4), (d).) As part of their oversight obligations, supervising judges frequently
must handle complaints against trial judges under their supervision from parties,
witnesses, court staff or others. (Rothman et al., Cal. Judicial Conduct Handbook (4th ed.
2017) § 6:2, pp. 339-340 (Rothman).) Supervising judges must respond to such
complaints appropriately and in a timely manner, or face discipline for having failed to
do so. (Inquiry Concerning Schnider (Aug. 31, 2009) pp. 4-5 (Schnider) [supervising
family law judge disciplined for failing to respond to complaints about commissioner
under his supervision from three different litigants and two attorneys]; 3 Com. on Jud.
Performance, Ann. Rep. (2011) Private Admonishment 9, p. 24 [presiding judge failed to
take appropriate corrective action after receiving reliable information about serious
wrongdoing by another judge on the court]; Com. on Jud. Performance, Ann. Rep. (2010)
3 	A supervising judge’s primary ethical duties are the same regardless of whether
the individuals supervised are commissioners, superior court judges or any other kind of
judge. (Schnider at p. 2 [canon 3C(3) “requires judges with supervisory authority for the
judicial performance of other judges and commissioners to take reasonable measures to
ensure the prompt disposition of matters before them”; canon 3D(1) “requires judges to
take appropriate corrective action when they have reliable information that another judge
has violated provision of the Code of Judicial Ethics”].)

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Advisory Letter 22, p. 27 [presiding judge did not properly respond to a complaint about
a delay by a commissioner in a family law case]; Com. on Jud. Performance, Ann. Rep.
(2009) Advisory Letter 14, p. 19 [judge charged with duty to supervise failed to ensure
timely responses to litigants’ complaints]; Com. on Jud. Performance, Ann. Rep. (2002)
Advisory Letters 1, 15, pp. 23-24 [presiding judge did not respond to a litigant’s
complaint in a timely manner, or to a letter from the Commission on Judicial
Performance inquiring about the status of the matter; another presiding judge failed to
process a complaint for nine months]; Com. on Jud. Performance, Ann. Rep. (2000)
Advisory Letters 17, 18, p. 22 [presiding judge failed to respond in a timely manner to a
complaint; in another case, a presiding judge acted promptly but delayed before notifying
complainant about the outcome of investigation]; Com. on Jud. Performance, Ann. Rep.
(1998) Advisory Letters 28, 29, p. 28 [supervising judge failed to respond to a complaint
against two commissioners and respond timely to a complaint against another
commissioner]; Com. on Jud. Performance, Ann. Rep. (1995) Advisory Letters 35, 36, p.
27 [supervising judges delayed response to complaints about commissioners]; Com. on
Jud. Performance, Ann. Rep. (1994) Advisory Letters 19, 21, 25, p. 19 [discipline
imposed for failures to respond to complaints]; Com. on Jud. Performance, Ann. Rep.
(1993) Private Admonishment G, p. 16 [same]; Com. on Jud. Performance, Ann. Rep.
(1993) Advisory Letters 14, 19, pp. 18-19 [same]; Com. on Jud. Performance, Ann. Rep.
(1992) Advisory Letter 20, p. 15; [same]; Com. on Jud. Performance, Ann. Rep. (1990)
Advisory Letter 29, p. 24 [same]; Com. on Jud. Performance, Ann. Rep. (1988)
Advisory Letter 44, p. 16 [same].)4
When responding to a complaint against a trial judge under their supervision,
supervising judges should first determine if the court’s local rules require them to follow
any specific procedures. (Cal. Stds. Jud. Admin., std. 10.20(d) [a court’s informal
complaint procedure “should be memorialized in the applicable local rules of court”];
4 	To ensure that there is a clear record if needed, supervising judges should consider
documenting in writing all steps taken in response to a complaint against a trial judge.

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see, e.g., Super. Ct. Alameda County, Local Rules, rule 2.0 [mandating that violations of
the court’s policy against bias be reported to the presiding judge, but reserving for a
future time implementation of Standard 10.20]; Super. Ct. Contra Costa County, Local
Rules, rule 2.150 [describing procedures presiding judge should follow when in receipt of
complaint against a bench officer]; Super. Ct. San Diego County, Local Rules, rule 1.2.1
[describing court’s policy against bias and access to court services]; Super. Ct. San
Francisco, Local Rules, rule 2.6 [outlining procedures after a complaint has been filed].)
But whether or not a court has adopted a local rule governing complaint procedures, a
supervising judge should always take reasonable measures to review, investigate and
respond to a complaint in a way that is designed to take appropriate corrective action
when the supervising judge has determined that the information is reliable. (Schnider,
supra, at p. 2 [citing canon 3C(3), which requires judges with supervisory authority to
take reasonable measures to ensure the prompt disposition of matters in their courts, and
canon 3D(1), which requires judges to take appropriate corrective action when they have
reliable information that another judge has violated the code].)
The “reasonable measures” that a supervising judge should take in response to a
complaint will depend on the facts and circumstances of each particular complaint.
(Schnider, supra, at pp. 4-5 [noting that a supervising judge’s knowledge that a
commissioner had a history of delay should have prompted the supervising judge to
investigate further]; see also Cal. Rules of Court, rule 703(g) [describing alternative
actions that a supervising judge may take after reviewing a complaint, depending on
whether the allegations merit further investigation].) That is particularly true with regard
to the decision whether to contact the trial judge accused of wrongdoing. For example, if
it is clear that a party is protesting a legal ruling that the trial judge has made in a case,
rather than an alleged breach of ethics, then it would not be necessary for the supervising
judge to communicate with the trial judge about the matter. Similarly, if the supervising
judge is able to determine that the complaint on its face is not reliable because it utterly
lacks credibility, it may be reasonable not to pursue an investigation. Where the

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complaint seems at first blush to be reliable, a supervising judge may be able to test the
complaint’s reliability and resolve the matter by reviewing transcripts, minute orders and
other recordings of trial court proceedings, by speaking with percipient witnesses
including court staff, or by employing an observer to attend proceedings and report to the
supervising judge about whether the trial judge’s behavior on the bench corroborates the
allegations of the complaint. If a supervising judge is not able to fully resolve a
complaint this way, he or she may be obligated by the duty of oversight to communicate
with the trial judge who is the subject of a complaint, either as part of an investigation
into the reliability of the complaint’s allegations or, if the supervising judge is convinced
of the reliability of the complaint, to confer with the trial judge about appropriate
corrective action. (Canon 3D(1); Cal. Judges Assn., Judicial Ethics Update (Jan. 2016) §
I.D, p. 4 [a presiding judge who receives a complaint by a litigant in a pending case has a
duty to investigate the complaint which may include discussing the matter with the
judge].)
In cases where the duty of oversight requires communication with the trial judge
about a complaint, the supervising judge should give careful consideration to whether it is
necessary to refer to specific facts and circumstances that relate to a proceeding pending
before the trial judge. Disclosure of such information by the supervising judge to the trial
judge would constitute an ex parte communication, which canon 3B(7) defines as “any
communications to or from the judge outside the presence of the parties concerning a
pending or impending proceeding.” Generally speaking, such ex parte communications
are prohibited. With certain exceptions discussed below, judges must “not initiate,
permit, or consider ex parte communications” and must “make reasonable efforts to avoid
such communications.” (Canon 3B(7).) For that reason, if discussion of a case currently
before the trial judge is required, the supervising judge should consider whether it would
be appropriate and practicable to avoid an ex parte communication by delaying the
discussion while the case proceeds to conclusion, and then resuming the inquiry with the

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trial judge when the case is no longer pending and no further proceedings before the trial
judge are reasonably anticipated.5
It may not be appropriate or practicable in every instance to delay speaking with
the trial judge who is the subject of a complaint. For example, if the allegations of a
complaint set forth facts that might affect the outcome of a currently pending case, then
the supervising judge may conclude that it would be improper to delay discussing the
matter with the trial judge. Or, if the complaint alleges sexual misconduct or racism or
other bias, then the supervising judge may feel compelled to proceed in order to mitigate
any harm should the allegations be established as true. Further, if a complaint arises in
the context of a family law case, probate, juvenile dependency or another kind of matter
that may last many years, or in a matter that is likely to be appealed and thereafter
remanded to the trial court, then it may not be possible to stay an investigation long
enough for the case to finally conclude. In those circumstances, there are exceptions to
the general prohibition on ex parte communications that permit disclosures of case-
related information to trial judges when necessary to fulfill the supervising judges’
oversight obligations, so long as certain conditions are met, as discussed below. (Cal.
Judges Assn., Judicial Ethics Update (Jan. 2016) § I.D, p. 4 [where a presiding judge
discloses a complaint to the judge it becomes an ex parte communication which the judge
would have to disclose].) For example, Canon 3B(7)(b) allows ex parte communications
for administrative purposes (such as judicial oversight) “where circumstances require.”
(Inquiry Concerning Ross (2005) 49 Cal.4th CJP Supp. 79, 104, fn. 6 [ex parte
communication by supervising judge while investigating complaint against trial judge
was part of legitimate administrative duties pursuant to canon 3C(3), and for that reason
it was not improper]; Rothman, supra, § 5.5, p. 268-269 [it is “essential” that the
communication be necessary for it to be ethically permissible].) Canon 3B(7)(a) allows
5 	If a stay of an investigation is appropriate in order to delay a communication with
the judge who is the subject of the complaint, then the supervising judge should consider
whether to inform the complainant and other parties in the case of the stay as well as the
reasons for the stay.

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ex parte communications between trial judges and “court personnel and others authorized
by law” (including a supervising judge) “as long as the communication relates to that
person’s duty to aid the judge in carrying out the judge’s adjudicative responsibilities.”
A supervising judge’s communication with a trial judge to investigate a complaint or
correct the trial judge’s violation of judicial ethics falls within this carve-out to the
general prohibition on ex parte communications.
Even where ex parte communications are allowed in the circumstances described
above, supervising judges should exercise caution to avoid unnecessary disclosure of
facts or other specific information about a case pending before the trial judge who is the
subject of the complaint. A trial judge does not have a right to know case-specific
information that is not necessary to evaluate the allegations raised in a complaint against
the trial judge or to take appropriate corrective action. (Inquiry Concerning Velasquez
(2007) 49 Cal.4th CJP Supp. 175, 209 [trial judge disciplined for demanding copies of
letters of complaint that had been submitted to his presiding judge].) “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.” (Canon 3B(7)(a); accord canon 3B(7)(b) [allowing ex parte
communications for administrative purposes only “where circumstances require”].) For
that reason, the supervising judge should narrow the focus of any discussion with the trial
judge to issues related to the administration of justice, the remediation of a violation of
the trial judge’s ethical duties, or the improvement of the trial judge’s conduct in future
matters. No extraneous information about cases pending before the trial judge, or that are
impending, should be disclosed. (Inquiry Concerning Platt, (2002) 48 Cal.4th CJP Supp.
227, 245, fn. 4 [general inquiry into administrative matters does not become an ex parte
communication unless and until it is linked to some specific case].) In addition, the
supervising judge should not disclose information to the trial judge that would provide a
procedural or tactical advantage to a party appearing before the trial judge in pending
litigation. (Canon 3B(7)(b)(ii).) Furthermore, supervising judges should limit their

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interactions with the trial judge as much as possible to written communications, so that
there is a clear record of what has been disclosed to the trial judge in case the content or
propriety of the communications is ever called into question. In the event that the
supervising judge verbally discloses ex parte communications to the trial judge, the
supervising judge should soon thereafter commit to writing any conversations regarding
the disclosure. The supervising judge remains responsible to take reasonable measures to
ensure that the trial judge follows proper procedures that may be required by the
disclosure of an ex parte communication to the trial judge. (See Schnider at p. 4
[discipline imposed on supervising judge who failed to follow up with commissioner
under his supervision after instructing her to take measures to remedy her ethical
violations].)
V. 	Conclusion
The proper handling of a complaint may require a supervising judge to disclose an
ex parte communication to the trial judge who is the subject of the complaint. Before
making such a disclosure, the supervising judge should determine if there are any
appropriate alternative ways to proceed with the investigation and resolution of the
complaint that would not require disclosure. If disclosure is required, it should be limited
to what is necessary.

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 summary are those of the committee and do not necessarily reflect the

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views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)