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(Ben Hancock)

SAN FRANCISCO — Supporters of Aaron Persky, the embattled California judge who handed a six-month jail sentence to ex-Stanford swimmer Brock Turner, are advertising face time with other judges to attract lawyers to a campaign fundraiser for Persky.

“Come share an evening with judges who support the anti-recall campaign,” a flyer circulated to attorneys and judges in the Bay Area reads. The flyer lists three “suggested contributions” for attendees of the fundraising event: $1,000, $500 and $250.

To some experts, and especially critics of Persky, marketing the event as allowing access to judges in order to drive up donations toes close to ethical limits. They argue that it at least gives the appearance of judges lending the power of their position for a political purpose.

 

 

While California rules do permit judges to express support for other judges or contenders in judicial elections, “I think when it comes to judges engaging in fundraising activities, you really are lending your prestige in a different way, in a problematic way,” said Charles Geyh, who teaches judicial ethics at Indiana University Maurer School of Law.

“It’s one thing to support the anti-recall cause. It’s another thing to be a cheerleader in such a way that you are generating revenue,” Geyh said. He added for that reason, judicial canons have long prohibited judges from participating in charity fundraisers. (Geyh noted that he has his own misgivings about the recall, despite strongly opposing Persky’s sentencing decision.)

Michele Dauber, the Stanford University professor leading the campaign to oust Persky, was more sharp in her criticism. “This is just more evidence of Judge Persky’s terrible judgment,” she said in a statement. “He has created a very unseemly situation for judges in which lawyers are being solicited to pay for access to ‘spend an evening with judges’ so that he can pay the fees of the Trump operative running his campaign and fund his frivolous litigation.”

It’s not clear who from the bench is actually attending the fundraiser, which is being hosted by the San Jose law firm McManis Faulkner. The firm is representing Persky in his legal challenge against the recall campaign, which is now headed for state appellate court.

Founding partner James McManis, in a phone interview, declined to name any judges who may be attending the event—although he said it would be open to the public and the press. McManis also rejected outright the notion that there was anything improper about the event.

“It is very, very common in judicial elections for judges to support other judges who are running, or judges who are challenging other judges,” McManis said, adding that his firm had only invited lawyers and judges because “they understand the importance of judicial independence.”

“I couldn’t quote you the canon, but it is not even a close question,” he said of the ethical concerns raised by critics. “This is open and shut.” McManis said that at the event he would be telling attendees “to write big checks because [Persky's] way behind in the money.”

 

 








 

 

There are two versions of the flyer circulating, one of which names three sitting judges on the Santa Clara Superior Court as “taking a stand” against the recall—suggesting that they might attend the fundraiser. They are Presiding Judge Patricia Lucas, past Presiding Judge Rise Pichon and Judge Brian Walsh, who currently presides over complex litigation. (McManis claimed he did not know who was responsible for generating this flyer. The wording of the two is identical, except that the flyer he said he distributed didn’t name the judges.)

 

The Recorder contacted the chambers of each of the judges. In response, Benjamin Rada, a spokesman for the court, issued a statement on their behalf. But neither they nor he would clarify whether they planned to participate in the fundraiser.

“Having reviewed the flyer recently distributed for the upcoming fundraiser on Sept. 14, we want to be clear that, though we continue to endorse the retention of Judge Persky, that endorsement was not intended as an endorsement of the ‘anti-recall campaign,’” they said.

“Because we are not privy to the entirety of the campaign’s activities, we are not in a position to sanction them. In order to stay well within our ethical boundaries, we have requested that our endorsement be used as we gave it: ‘I support retaining Judge Aaron Persky.’ And, we certainly do!” the judges added.

Persky has faced calls for his ouster since he sentenced Turner, who ultimately served just three months in jail after being convicted in June 2016 of sexually assaulting an unconscious woman behind a dumpster. But many other judges and attorneys—even those who disagree strongly with his decision—have argued that pulling him from the bench over a decision that didn’t violate the law sets a dangerous precedent for judicial independence.

The wall of support that others on the bench have formed with Persky appears to have made at least some lawyers feel uncomfortable taking an opposite position publicly. One attorney, who requested anonymity for fear of reprisal, said that he would not even consider donating to the recall campaign because of fear that judges would learn of it through public disclosures.

“I have an active litigation practice. I appear in front of them all the time,” he said. “I’m not going to raise a red flag. I’m not going to put my hand in the meat grinder.”

California is an outlier in allowing judges to take a position on judicial campaigns, according to Geyh. The American Bar Association’s Model Code of Judicial Conduct prohibits judges from endorsing anyone but themselves when running for judicial office. California’s code, by contrast, says a judge “may publicly endorse a candidate for judicial office,” and that judges have a “special obligation to uphold the integrity, impartiality and independence” of the judiciary.

Still, Geyh pointed out that a separate canon says a judge “shall not lend the prestige of judicial office or use the judicial title in a manner, including any oral or written communication, to advance the pecuniary or personal interests of the judge or others.” Read together, he said, he would characterize fundraising in this fashion as a “gray area.”

But not all outside experts feel the same way. Jessica Levinson, who specializes in campaign ethics at Loyola Law School, said that “as long as there’s no promise of how they or Judge Persky would rule in the future, I think it’s permissible in California.”

Levinson acknowledged that she opposes the recall campaign, and added that she is against the idea of judges standing for election generally. But, she said, that’s the system California has set up. “Welcome to the real world,” she said. “People who can give donations, give donations to get face time with the person.”

Contact Ben Hancock at bhancock@alm.com. On Twitter: @benghancock.

 

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