Judge Marc Kelly was served with Notice of Recall the morning of Friday, May 1st by respected Crime Survivors CEO Patricia Wenskunas and recall activist Bryan Scott..
The day before, he used the official California judicial email system to send an email to every Superior Court Judge and Court Commissioner in the county, calling upon them to support his efforts to fight the recall. In doing so he has triggered significant ethical questions about his conduct on the bench.
His email reads as follows:
Distribution: All Judges and Commissioners, active, retired and assigned
As you may be aware, I am a likely subject of a recall petition as a result of a difficult sentencing decision I made on April 3, 2015. Many politicians and others are calling for my resignation. The ensuing social media frenzy has resulted in rage, hate mail, and vilification of me and my family. I have been serving the public in Orange County for approximately 28 years. I have been on the Bench for 15 years, the past 11 years I have handled serious felony cases. Prior to that, I was a Deputy DA for almost 13 years, prosecuting mostly violent gang crimes.
Once served with a recall petition, I have seven days in which to file a response. Since I am ethically prohibited by our Judicial Canons (3B9) from discussing a pending case, I am limited in what I can say. I firmly believe in an independent judiciary, which is now being threatened by this situation. I would like to state the number of Orange County Superior Court Judges and Commissioners that support my retention and an independent judiciary. Your names would not be stated in my response.
If you support my retention and an independent judiciary, please email, write, or call to let us know whether I can represent that I have your support. I believe the overwhelming support of my colleagues will certainly send a strong message. In order to spare an administrative overload on staff, and to protect your confidentiality, Attorney Paul Meyer has graciously offered to gather the responses for me. You can privately reply directly to his email above, or reach him by phone at 714-754-6500. Please keep in mind, time is of the essence, so I would appreciate your prompt reply.
Please know that I have been advised by the CJA Ethics Committee that use of the court email to make this request, and to obtain your responses is permissible, and does not violate and Judicial ethical or legal standard.
Kelly’s email has provoked new controversy and raised fresh ethical issues in the recall effort. Kelly claims the CA Judicial Council blessed his email, but did they consider the following?
First, the recall is a political event, which, if successful, will result in a special election for his seat. He himself will be a listed candidate for re-election who appears on the ballot. Judicial candidates are explicitly prohibited from campaigning inside the courthouse or using any judicial resources to conduct a campaign, so his reach out to judges using official judicial email seems an obvious violation of ethics.
Second, Commissioners serve at the pleasure of the judges. To directly ask Commissioners for their support presents them with an ethical conundrum. If they refuse to support Judge Kelly, are they putting their jobs at risk? Is this improper and unethical intimidation of judicial employees?
Third, Judge Kelly’s plan to report the number of judicial supporters, without revealing their identities, is an obvious attempt to give them political cover with no accountability to the public. Judge Kelly’s promise of no transparency is insulting and now questions why the public should have any confidence in the judicial system.
Fourth, although many judges tell me they oppose recall as a tool to remove unpopular judges, they don’t support Judge Kelly’s sentencing decision or analysis. Several have said they fear supporting Kelly’s call for independence will be misconstrued or deliberately misrepresented to imply they agree with his leniency for defendants who anally rape three year olds.
Judge Kelly, now you have a lot more explaining to do.
KEEP IT ON THE QT!