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The state’s judicial watchdog dismissed charges against an ex-judge charged with campaign speech violations Tuesday, citing a June U.S. Supreme Court case that struck down Minnesota’s judicial speech gag. The decision by the Commission on Judicial Performance in its star-crossed case against former Sonoma County Judge Patricia Gray hints at the effect Republican Party of Minnesota v. White will have on California’s judicial canon of ethics. The disciplinary action against Gray stemmed from mailers sent out by her campaign that targeted her opponent, a deputy public defender, in their 2000 campaign. One of the mailers featured the words “Cop Killer” in large type above the statement, “now Elliot Daum wants you to elect him judge.” Other mailers accused Daum of being soft on violent criminals, including child molesters and armed robbers. Gray’s lawyer, who had challenged the discipline charges as “a restraint on core political speech” and a violation of the First Amendment, said the state judicial canon’s speech clause is dead. “Most people identify free speech issues with liberals, so there’s a little bit of irony that a conservative Supreme Court has finally stepped up and protected the right of core political speech,” Mark Geragos, of Los Angeles’ Geragos & Geragos, said Tuesday. “I think it’s the death knell for Canon 5.” Commission Counsel Richard Shickele declined to elaborate on the one-paragraph dismissal order that cited White. Chief Justice Ronald George said Tuesday that he’s already appointed an advisory committee to study possible changes to the state’s canons. “Our committee will look at whether or not a change is needed in our canons in light of the White decision, among a number of issues, and decide whether or not this court should make amendments,” he said. Canon 5 of California’s code of judicial ethics prohibits judicial candidates from making statements that make clear their position on issues that could eventually come before the court. In addition, Canon 5 bars judicial candidates from knowingly misrepresenting facts concerning themselves or their opponents. The Minnesota canon addressed in White was worded differently than California’s, George said, so the advisory committee’s job will be to determine how White affects California’s code of judicial ethics. The case against Gray hit a bump last year when her lawyers accused CJP Executive Director Victoria Henley of a conflict of interest. At the time the discipline case was filed, Henley’s husband, a lawyer, had a malpractice suit pending against Gray. The CJP had U.S. District Court Judge Charles Legge investigate, and he eventually cleared Henley of a conflict of interest, but recommend she not participate in any further proceedings against Gray. The ruling in White — coupled with the commission’s dismissal of Gray’s case — promises to change the staid nature of judicial campaigns in California. “I think [the decision] will benefit the public because you’ll see much more engaged debate in judicial races,” said Geragos. Ephraim Margolin, a defense attorney who has represented numerous judges in discipline cases, says the commission will have to pay more attention to the U.S. Supreme Court’s First Amendment in Canon 5 cases. “They’ll still investigate but they won’t always charge judges,” he said. “Canon 5 is so generally drafted — whoever drafted it didn’t pay attention to the First Amendment,” Margolin said. “I never believed that becoming a judge means you cancel your rights as a citizen to free speech. “Being a judge does not mean being mute.”

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