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COMMENTING ON PENDING CASES BY CYNTHIA GRAY Key Issues in Judicial Ethics
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Page 1: COMMENTING ON PENDING CASES - NCSC

COMMENTING ON PENDING CASES

BY CYNTHIA GRAY

Key Issues inJudicial Ethics

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American Judicature SocietyAllan D. SobelExecutive Vice President and Director

Cynthia GrayDirector, Center for Judicial EthicsBox 190, 3304 N. BroadwayChicago, IL 60657(773) 248-6005FAX (773) 248-6015

Other papers available in the Key Issues in Judicial Ethics series:• Recommendations by Judges (8/00)• Ethical Issues for New Judges (7/03)• Political Activity by Members of a Judge’s Family (5/01)• Organizations that Practice Invidious Discrimination (7/99)• A Judge’s Attendance at Social Events, Bar Association Functions, Civic and Charitable Functions,

and Political Gatherings (8/98)• Real Estate Investments by Judges (1/01)• Ethics and Judges’ Evolving Roles Off the Bench: Serving on Governmental Commissions (2/02)• Disqualification Issues When a Judge is Related to a Lawyer (5/01)

To order, call toll-free (888) 287-2513 or visit www.ajs.org.

Copyright 2001, American Judicature SocietyUp-dated 6/01Order #847

American Judicature SocietyThe Opperman Center at Drake University2700 University Ave.Des Moines, IA 50311(515) 271-2281Fax (515) 279-3090www.ajs.org

The Center for Judicial Ethics has links on its web site (www.ajs.org/ethics/) to judicial ethics advisorycommittee web sites.

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CONTENTS

INTRODUCTION 1

COMMENTING ON A CASE PENDING BEFORE THE JUDGE 2

Disqualification 3

Explaining procedures and decisions 6

Comments following reversal on appeal 8

Responding to criticism about a pending case 9

COMMENTING ON A CASE PENDING ON APPEAL 11

COMMENTING ON A CASE PENDING BEFORE ANOTHER JUDGE IN THE SAME JURISDICTION 13

COMMENTING ON AN IMPENDING CASE 13

COMMENTING ON A PENDING CASE IN ANOTHER JURISDICTION 14

SCHOLARLY TEACHING AND WRITING 15

COMMENTING WHEN A CASE IS NO LONGER PENDING 16

If a judge is criticized about a case that is no longer pending 17

THE FIRST AMENDMENT 18

SUMMARY 19

CODE VARIATIONS 20

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INTRODUCTION

Canon 3A(6) of the 1972 American BarAssociation Model Code of Judicial Conduct stated:“A judge should abstain from public comment abouta pending or impending proceeding in any court.”Concerned that that language was “overbroad andunenforceable,” the ABA narrowed that provision inthe 1990 model code. Milord, The Development ofthe ABA Judicial Code at 21 (1992). Thus, Canon3B(9) of the 1990 model code provides:

A judge shall not, while a proceeding ispending or impending in any court, make anypublic comment that might reasonably be expect-ed to affect its outcome or impair its fairness.

(emphasis added). (Both versions also provide that ajudge must require “similar abstention on the part ofcourt personnel subject to the judge’s direction andcontrol.”) There has been no authority interpretingthe change in the code, however, and what changethe qualification “might reasonably be expected toaffect its outcome or impair its fairness” will have onjudges’ ability to comment on a pending proceedingis not clear.

Moreover, not all jurisdictions have adopted thechange in the restriction on public comments even ifthey have adopted other provisions of the 1990model code. The codes in many jurisdictions stillprohibit all public comment, not simply publiccomment “that might reasonably be expected toaffect its outcome or impair its fairness.” Explainingthe decision to retain the broader language from the1972 model code, commentary to the Maine codestates that “the difficulty of assessing the impact ofpublic comment on an unknown audience justifiesthe absolute bar.”

This paper explores the requirement that a judgerefrain from commenting on cases, including casespending before the judge, cases pending beforeanother judge in the same jurisdiction, cases inanother jurisdiction, cases pending on appeal, andimpending cases. Whether a judge may respond tocriticism of a decision in a pending case and when ajudge’s comments may require disqualification arealso considered. The paper discusses exceptions tothe rule such as explaining court procedures andcomments in scholarly presentations. The paper also

examines First Amendment challenges to the restric-tion. Finally, the paper discusses commenting whena case is no longer pending, particularly if a judge iscriticized about a completed case.

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COMMENTING ON A CASE PENDING BEFORE THE JUDGE

Under both the 1972 and 1990 model codes, ajudge is clearly prohibited from commenting on themerits of cases pending before the judge because anysuch comments could “reasonably be expected toaffect its outcome or impair its fairness.” Commentsabout a case pending before the commenting judgemight:

• give the appearance that the judge has alreadydecided the case, casting doubt on the judge’s“objectivity and his willingness to reservejudgment until the close of the proceeding,”or

• unduly influence or appear to unduly influ-ence the jury.

Ross, “Extrajudicial Speech: Charting theBoundaries of Propriety,” 2 Georgetown Journal ofLegal Ethics 589 (1989). Moreover, judges “whocovet publicity, or convey the appearance that theydo, lead any objective observer to wonder whethertheir judgments are being influenced by the prospectof favorable coverage in the media.” United States v.Microsoft Corp., Nos. 00-5212 and 00-5213 (U.S.Court of Appeals District of Columbia Circuit June28, 2001). In Microsoft, the court explained:

Judge Learned Hand spoke of “this America ofours where the passion for publicity is a disease,and where swarms of foolish, tawdry moths dashwith rapture into its consuming fire. . . .” Judgesare obligated to resist this passion. Indulging itcompromises what Edmund Burke justly regard-ed as the “cold neutrality of an impartial judge.”Cold or not, federal judges must maintain theappearance of impartiality. . . . Public confi-dence in judicial impartiality cannot survive ifjudges, in disregard of their ethical obligations,pander to the press.

The canon specifically provides that judges maymake “public statements in the course of their offi-cial duties.” “A judge’s comments during a pretrialconference or from the bench about a proceedingbefore him may be public in the sense that the com-

ments are made in open court, but such statementsare a part of a judge’s duties and are not proscribed.”Thode, Reporter’s Notes to the Code of JudicialConduct at 55 (ABA 1973). Moreover, judges maycomment “on proceedings in which the judge is a lit-igant in a personal capacity,” although that does notinclude “cases such as writ of mandamus where thejudge is a litigant in an official capacity.”Commentary to Canon 3B(9).

The prohibition on commenting on pendingcases obviously restricts any comment that reflectsprejudgement of the case. For example, the NewYork State Commission on Judicial Conduct foundthat a judge should not have made comments to areporter that indicated a predisposition to believe thedefendant and to disfavor the woman that he wascharged with assaulting. In the Matter of Bender,Determination (December 21, 1999) (www.scjc.ny.us/bender.htm) (censure for this and other mis-conduct). Speaking with a reporter about the case ofa man charged with assault based on an incidentinvolving his girlfriend, the judge stated, “At thetime of the arraignment, there were facts deducedthat perhaps he should have had her arrested becauseshe assaulted him.” The judge also stated that thejudge did not expect the woman to return to thehome that she shared with the defendant, and“There was not any reason for the alleged victim tobe at the apartment to make a problem.” Statingthat it was improper for the judge to make any com-ment to a newspaper reporter concerning a pendingcase, the Commission concluded it was especiallywrong for him to publicly accuse the alleged victimof committing a crime, particularly since the remarkwas based only on unsworn conversations at anarraignment.

In a second case, the Commission concludedthat a judge’s comments to a reporter about a crimi-nal case pending in his court conveyed the appear-ance of pre-judgement. The judge indicated to thereporter that he believed that the defendant was adanger to the community and that the $20,000 bailthat he had set was probably not high enough tokeep the defendant in jail. In the Matter of Maislin,Determination (August 7, 1998) (www.scjc.ny.us/maislin.htm) (admonished for this and other mis-conduct)). Noting that it was wrong for a judge tomake any public comment, no matter how minor, to

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a newspaper reporter or to any one else about a casepending before him, the Commission stated that thejudge’s remarks were not minor.

The restriction on commenting on pendingcases applies even if the comment is not on the mer-its of the case. The Louisiana Supreme Court heldthat a judge should not have commented to areporter about a motion to recuse in a criminal mat-ter. In re Best, 719 So. 2d 432 (Louisiana 1998) (cen-sure for this and other misconduct). The judge hadsaid, “I don’t think much of [the motion to recuse].It’s frivolous. There’s not a reason in the world torecuse myself. It’s just an effort by [the attorney] tozealously represent his client.” When asked aboutthe attorney’s claim that he had improperly denied amotion to quash, the judge responded, “I gave hima cutoff date and he failed to submit the evidence intime. He failed in representing his client.” In a sec-ond case, after an inquiry from a newspaper, thejudge made public a sealed order in which a secondjudge agreed that she would be recused from all casesinvolving a particular law firm, and the second judgethen rescinded her agreement after the disclosure.The judge told a reporter, “I don’t believe she has theauthority [to rescind her agreement]. I don’t thinkshe’s a party to it.” The judge also stated in addi-tional comments published in the newspaper that he“had reservations about sealing those documents(the settlement order), but all parties to the orderwanted them secret.”

Following are additional examples of cases inwhich judges have been disciplined for commentingon cases pending before them.

• A judge should not have talked to a newspa-per reporter before a final disposition after thejudge ordered two boys detained in familycourt for psychological exams. Among otherstatements, the judge had commented: “I feltthe need to put them in there so they can havethe psychological (testing) and so they’ll behere. It was either that or go ahead and sendthem to the Department of Youth Services”(In the Matter of Nice, COJ 21, Judgement(Alabama Court of the Judiciary June 21,1988) (6-months suspension for this andother misconduct)).

• A judge should not have (1) shown a deci-

sion to a newspaper reporter and discussedhis rationale before the parties receivedcopies; (2) informed a reporter that heplanned to vacate an order of contempt (theperson held in contempt learned of thejudge’s intention to vacate the order by read-ing the newspaper while the validity of theorder was pending in the superior court on apetition for writ of habeas corpus); and (3)defended his imposition of a 30-day jail sen-tence because a defendant requested a jurytrial by discussing the pending matter withthe press and writing a letter to the editor(Ryan v. Commission on Judicial Performance,754 P.2d 724 (California 1988) (removal forthis and other misconduct)).

• A judge should not have discussed with ajournalist the progress of a murder trial overwhich he was presiding and his opinions andreactions to the conduct of participatingattorneys, witnesses, and the jury. The judgehad known that his comments, though given“off the record,” would be used by the jour-nalist in material that he was preparing forpublication (In re Hayes, 541 So. 2d 105(Florida 1989) (reprimand)).

• A judge should not have written a letter pub-lished in a newspaper that, in an effort tolessen division in the region, addressed com-munity reaction to the arrest of five NativeAmericans charged with a murder and spokeout against the dynamics that feed racism; thecase was pending before the judge (PressRelease (Wolf ) (Minnesota Board on JudicialStandards 1996) (reprimand)).

• A judge should not have made comments to areporter about a probation revocation pend-ing before the district court (Press Release(Porter) (Minnesota Board on JudicialStandards November 5, 1999) (reprimand)).

DisqualificationIn addition to other considerations, under

Canon 3E(1), a judge’s off-the-bench commentsabout a pending case may disqualify the judge fromthe case if the comments cast doubt on the judge’s 3

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ability to act impartially.For example, in United States v. Cooley, 1 F.3d

985 (10th Cir. 1993), the court held that the appear-ance on a national television show by a judge whohad entered an injunction against abortion protestscreated in reasonable persons a justified doubt as tohis impartiality and required his disqualificationfrom cases involving the protests. The judge hadstated his views regarding continuing protests atabortion clinics, the protesters, and his determina-tion that his injunction against the protests wasgoing to be obeyed. The court stated:

Two messages were conveyed by the judge’sappearance on national television in the midst ofthese events. One message consisted of the wordsactually spoken regarding the protesters’ appar-ent plan to bar access to the clinics, and thejudge’s resolve to see his order prohibiting suchactions enforced. The other was the judge’sexpressive conduct in deliberately making thechoice to appear in such a forum at a sensitivetime to deliver strong views on matters whichwere likely to be ongoing before him. Together,these messages unmistakenly conveyed anuncommon interest and degree of personalinvolvement in the subject matter. It was anunusual thing for a judge to do, and it unavoid-ably created the appearance that the judge hadbecome an active participant in bringing law andorder to bear on the protesters, rather thanremaining as a detached adjudicator.

Similarly, the Court of Appeals for the FirstCircuit held that a trial court judge should have dis-qualified herself after making comments to areporter that a reasonable person could have inter-preted as doing more than correcting misrepresenta-tions and as creating an appearance of partiality. Inre: Boston’s Children First, 244 F.3d 164 (1st Cir.2001). A suit was filed challenging Boston’s elemen-tary school student assignment process, claimingthat plaintiffs had been deprived of preferred schoolassignments based on their race. The district courtjudge postponed a decision on a motion for class cer-tification until further discovery. In a statement to areporter quoted in a Boston Herald story, counsel forthe petitioners “made the provocative claim that ‘[i]fyou get strip-searched in jail, you get more rightsthan a child who is of the wrong color,’” referring toa case in which the judge had certified a class ofwomen who had been strip-searched in jail. The

judge responded to what she viewed as inaccuraciesin the article. In a follow-up article, the Herald quot-ed the judge as saying: “In the [strip search] case,there was no issue as to whether [the plaintiffs] wereinjured. It was absolutely clear every woman had aclaim. This is a more complex case.” In a motion todisqualify, the petitioners argued that the judge’sstatement could be construed as a comment on themerits of the pending motions for preliminaryinjunction and class certification, signaled that reliefwas unlikely to be forthcoming, and provideddefendants with a ready-made argument with whichto distinguish the cases.

Noting “judges are generally loath to discusspending proceedings with the media, even when lit-igants may have engaged in misrepresentation,” thecourt stated:

In newsworthy cases where tensions may behigh, judges should be particularly cautiousabout commenting on pending litigation.Interested members of the public might wellconsider Judge Gertner’s actions as expressing anundue degree of interest in the case, and thus payspecial attention to the language of her com-ments. With such public attention to a matter,even ambiguous comments may create theappearance of impropriety . . . . In fact, the veryrarity of such public statements, and the easewith which they may be avoided, make it morelikely that a reasonable person will interpret suchstatements as evidence of bias.

Stating “the judge’s public comments could easily becharacterized as legitimate efforts to explain opera-tive law,” the court concluded the “comments weresufficiently open to misinterpretation so as to createthe appearance of partiality, even when no actualprejudice or bias existed.” The court stated, “Thefact that Judge Gertner’s comments were made inresponse to what could be characterized as an attackby counsel on the procedures of her court did notjustify any comment by Judge Gertner beyond anexplanation of those procedures. Whether counselfor petitioners misrepresented the facts or not isirrelevant . . . .”

In Judith R. v. Hey, 405 S.E.2d 447 (WestVirginia 1990), a judge was disqualified from a cus-tody proceeding when he made several comments tothe press and on a national television program high-ly critical of the reputation, character, and motiva-

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tion of one of the parties; the judge was subsequent-ly censured for his remarks. The judge had said,among other things, “My primary concern, and Iwant to make this clear, is for the welfare of thatchild, and I don’t think it is in the welfare, the bestinterests of a child 13 years old to see her mothersleeping with a man that is not her father, and nextweek there may be a different man in the house, andthe third week there may be a third one. The judgewas subsequently censured for those remarks (In theMatter of Hey, 425 S.E.2d 221 (West Virginia1992)), and the West Virginia Supreme Court ofAppeals held that the judge’s remarks were not “judi-cial acts” for which he should have absolute immu-nity from the mother’s suit for defamation. Roush v.Hey, 475 S.E.2d 299 (1996). See also In re IBMCorp., 45 F.3d 641 (2d Cir. 1995) (a judge was dis-qualified from an IBM anti-trust case brought by thefederal government based on judicial and extra-judi-cial actions, including newspaper interviews he gaveconcerning IBM’s activities in general and an assis-tant attorney general’s role in the suit); Papa v. NewHaven Federation of Teachers, 444 A.2d 196(Connecticut 1982) (where a judge made criticalcomments quoted in a newspaper about a particularteachers’ strike and stated that he was ”ready to jailmore” teachers if the strike was not settled soon, hewas disqualified from a case involving that strike).

Finally, the comments the trial judge made toreporters during the Microsoft anti-trust caseformed part of the basis for the decision vacating hisremedy order and led the Court of Appeals for theDistrict of Columbia Circuit to direct that the casebe assigned to a different trial judge on remand.United States v. Microsoft Corporation, Nos. 00-5212and 00-5213 (June 28, 2001). The D.C. Circuitemphasized it found no evidence of actual bias.However, it concluded that the judge’s “secret inter-views with members of the media” and “numerousoffensive comments about Microsoft officials inpublic statements outside of the courtroom” gaverise to an appearance of partiality, “seriously taintedthe proceedings,” and “called into question theintegrity of the judicial process.”

The court found that accounts of the judge’sinterviews began appearing immediately after heentered final judgment and that the judge “also hadbeen giving secret interviews to select reporters

before entering final judgment — in some instanceslong before.” The judge had “embargoed” the earlyinterviews, insisting that the fact and content of theinterviews remain secret until the final judgment.

In the interviews, the judge discussed numeroustopics relating to the case, including his distaste forthe defense of technological integration (one of thecentral issues in the lawsuit), “what he regarded as thecompany’s prevarication, hubris, and impenitence;”“his contemporaneous impressions of testimony;”“after-the-fact credibility assessments;” and his viewson the appropriate remedy. The court stated thatreports of the interviews conveyed “the impression ofa judge posturing for posterity, trying to please thereporters with colorful analogies and observationsbound to wind up in the stories they write.”

The court noted that the judge’s commentsmight not require disqualification had he spokenthem from the bench, which would have givenMicrosoft “an opportunity to object, perhaps even topersuade” and created a record for appeal. However,the court stated: “It is an altogether different matterwhen the statements are made outside the court-room, in private meetings unknown to the parties, inanticipation that ultimately the Judge’s remarkswould be reported.” The court also stated that thejudge’s insistence on secrecy “made matters worse”because it suggested knowledge of the improprietyand “prevented the parties from nipping his impro-prieties in the bud.”

The court explained that, although it con-demned public judicial comments on pending cases,it would not hold that every violation of the restric-tion or every impropriety “inevitably destroys theappearance of impartiality” and requires disqualifica-tion. In this case, however, the court held, “the linehas been crossed,” emphasizing that the judge’s vio-lations “were deliberate, repeated, egregious, and fla-grant.”

The public comments were not only improper,but also would lead a reasonable, informedobserver to question the District Judge’s impar-tiality. Public confidence in the integrity andimpartiality of the judiciary is seriously jeopard-ized when judges secretly share their thoughtsabout the merits of pending cases with the press.

(The court also explained that the judge’s inter-views raised serious questions about whether he had

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violated the prohibition on ex parte communica-tions. The court stated: “When reporters pose ques-tions or make assertions, they may be furnishinginformation, information that may reflect their per-sonal views of the case.” Moreover, noting that thejudge’s secret interviews “provided a select few withinside information,” the court stated that for all thejudge knew, the reporters “may have been trading onthe basis of the information he secretly conveyed.”)

Explaining procedures and decisionsAn express exception to the prohibition on mak-

ing public comments on pending cases, under boththe 1972 and the 1990 model codes, allows a judgeto make public statements “explaining for publicinformation the procedures of the court.”Explaining court decisions, however, does not fallwithin this exception.

To distinguish between impermissible publiccomments and permissible public explanations, theterminology section of the Georgia code of judicialconduct prohibits “valuative statements” but allows“generally informative explanations to describe liti-gation factors.” According to the Georgia code, “val-uative statements” judge “the professional wisdom ofspecific lawyering tactics or the legal correctness ofparticular court decisions.” Examples of permitted“informative explanations” include descriptions of:

• the prima facie legal elements of types ofcases,

• legal concepts or principles such as burden ofproof, duty of persuasion, innocent untilproven guilty, and knowing waiver of consti-tutional rights,

• “variable realities illustrated by hypotheticalfactual patterns of aggravating or mitigatingconduct,”

• procedural phases of lawsuits,

• the social policy goals behind the law beingapplied, and

• “competing theories about what the lawshould be.”

Citing the exception for explaining court proce-dures, the Tennessee judicial ethics committee stated

that a trial judge may speak to groups on subjectsrelated to but separate from the merits of a casewhile the case was on appeal. Tennessee AdvisoryOpinion 89-13. The case had attracted widespreadmedia attention, and the judge who had presidedwas invited to speak at civic clubs, school classes, andbar-related functions. The committee explained thata judge could discuss:

• the rules and procedures regulating in-courtmedia coverage of trial proceedings,

• the procedures a trial judge is required to fol-low when sitting without a jury, and

• the general proposition that the personalopinions of the judge or the moral, ethical,theological, and political views of societyshould have no part in the court’s decision ina particular case.

Following are other examples of speech fallingwithin the exception for explaining court proce-dures.

• A judge may explain the procedures fordetaining a witness who refuses to obey a sub-poena, but may not speak to the ACLU con-cerning a case in which the judge had a recal-citrant witness arrested while a motion forpost-conviction relief was impending (FloridaAdvisory Opinion 96-18).

• A judge may discuss procedures of the courtin general terms for the information of thepublic, but may not relate trial strategies to adecision in a specific case (Georgia AdvisoryOpinion 60 (1984)).

• The judges of a district in which a high pro-file case is pending may appoint a judge whois not hearing the case as a media liaison toanswer questions concerning legal proceduresand/or processes (Nevada Advisory OpinionJE-00-6).

• A judge may express an opinion of the actionsof a local conditional release commission gen-erally, but should not mention the names ofany specific defendants nor discuss pendingcases (New York Advisory Opinion 92-67).

• If a court is establishing a new program, a6

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judge may properly discuss the program withthe media so long as the judge is careful torefrain from comment on any pending matter(Pennsylvania Formal Advisory Opinion 99-3).

• A justice of the peace may answer questionsconcerning inquest proceedings prior to afinal ruling on a death certificate, but may notdiscuss the facts or other aspects of the caseduring the investigation or while the matter ispending (Texas Advisory Opinion 95 (1987)).

The exception for explaining the procedures ofthe court, the Alabama Supreme Court suggested,allows a judge to:

• explain a case in abstract legal terms,

• provide background information relating tothe operation of the court system, and

• explain legal terms, concepts, procedures, andthe issues involved in the case.

In the Matter of Sheffield, 465 So. 2d 350 (1985).An extra-judicial explanation by a judge of his or

her ruling, however, is not an appropriate explana-tion of court procedures. In Sheffield, the courtrejected the judge’s argument that his comments to areporter were merely abstract legal explanations of apending contempt hearing and a part of his judicialduty. A witness in a case before the judge had writ-ten a letter critical of the judge that was published inthe local newspaper. The judge issued an orderdirecting the witness to show cause why she shouldnot be held in contempt of court. The eveningbefore the hearing, in a telephone call with the edi-tor of the local newspaper, the judge explained themeaning of constructive or indirect contempt andthe possible sanctions for contempt. The judge alsosaid, “The contempt speaks for itself. I think it ispretty obvious who she is talking about.”Furthermore, the judge suggested to the editor that“the article [had] false information in it,” and thatthe editor “might want to look at the libel laws; callan attorney.” The court found that the judge hadviolated the restriction on making comments on apending case.

Rejecting the argument that the judge was mere-ly explaining court procedures, the Texas StateCommission on Judicial Conduct found that a

judge’s lengthy interview with reporters explaininghis sentence in a case violated the prohibition onmaking public comments. Order of Public Censure(Hampton) (November 27, 1989). The judge hadtalked with two reporters while a motion for a newtrial was pending in a case in which a defendant hadbeen convicted of killing two men. To one of thereporters, the judge stated:

The victims were homosexuals. They were out inthe homosexual area picking up teenage boys.Had they not been out there trying to spreadAIDS around, they’d still be alive today. I hopethat’s clear. [The defendant] is an eighteen yearold boy. He had thirty years in prison. You knowthat’s a pretty heavy punishment for a kid that’snever done anything wrong before. I balance thecharacter of the defendant against the crime hecommitted. I tried to consider every fact that waspresented to me. I’ve been prosecuting since1955. Defending, I defended cases twenty years.I’ve been judging them for seven years and anysentence that I do is a sum total of thirty-threeyears experience in criminal law and it does notupset me if anybody in the Gay Alliance dis-agrees with me.

The Commission condemned the commentsbecause they were lengthy, reviewed the specificdetails of the case, and formulated or pronouncedthe rationale for the judge’s rulings. TheCommission explained that to excuse such a discus-sion “would be to introduce and condone the use ofoff-record, extra-judicial considerations into theadjudicative process. Perceptions of fairness woulddecrease and mistrust increase.” The Commissionfound that the judge’s comments, per se, weredestructive of public confidence in the integrity andimpartiality of the judiciary, noting that the publichad reacted to the judge’s comments with disbelief,abhorrence, and indignation. The Texas advisorycommittee has also stated that a judge’s explanationof his or her stated position in a case is not an expla-nation of court procedures. Texas Advisory Opinion191 (1996).

The Illinois judicial ethics committee advisedthat a judge should not attempt “to explain an actionthat he had taken in court with extrajudicial state-ments that were not a matter of public record.”Illinois Advisory Opinion 96-5. See also IllinoisAdvisory Opinion 98-10. The committee received an

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inquiry from a judge asking if he could haveanswered a reporter’s questions about a pendingchild support case in which the judge had increasedthe reporting requirements for an unemployedfather on the grounds that the father was not mak-ing an earnest job search. The committee noted thata judge who discusses reasons for a ruling risks inad-vertently providing information that is not a part ofthe public record. Moreover, even if the judge doesnot improperly comment on a pending case, the“reporter’s accounts of the judge’s remarks could giverise to an erroneous appearance that the judge vio-lated the rule.” The committee replied that thejudge could not have discussed his reasons for theruling except to comment on “matters of publicrecord, including reciting without elaboration, anyexplanation of the judge’s ruling that appeared in thetranscript of the proceedings or in the court’s order.”

Instead of responding “no comment,” the com-mittee recommended that a judge faced with aninquiry from a reporter consider:

• informing the reporter of the procedure forobtaining a transcript of the proceedings,

• explaining the ethical constraints on a judge’sability to discuss pending cases and directingthe reporter to the location and language ofthe relevant provision of the code of judicialconduct, and

• providing the reporter with a copy of the advi-sory opinion.

The New York State Commission on JudicialConduct concluded that a judge should not haveattempted to repeat or summarize out of court whatwas said in the courtroom. In the Matter of McKeon,Determination (August 6, 1998) (www.scjc.state.ny.us/mckeon.htm) (censure for this and othermisconduct). The judge received a telephone callfrom a New York Times reporter requesting a sum-mary of a court proceeding over which the judge hadpresided a few hours earlier in a case challenging thesuspension of a Bronx community school board. TheTimes accurately quoted the judge as saying, “I felt adegree of uneasiness about using standards of aca-demic achievement as some kind of criteria aboutwhether the board should remain in office. Simplyto say things haven’t gotten better, and laying that atthe doorstep of people who are unsalaried and meet

several times a month, that disturbs me.” The Timesalso reported that the judge stated that he wantedthe chancellor’s attorneys to offer specific examplesof how the school board had failed to take steps toimprove academic performance. The Times reportedthat the judge’s “remarks could provide a clue abouthow he might rule in the case.”

In disqualifying the trial judge in United States v.Microsoft Corp., Nos. 00-5212 and 00-5213 (U.S.Court of Appeals District of Columbia Circuit June28, 2001), the court of appeals held that the judge’s“opinions about the credibility of witnesses, thevalidity of legal theories, the culpability of the defen-dant, the choice of remedy, and so forth” expressedin his interviews with reporters were not discussionson purely procedural matters that fell within thatnarrowly drawn exceptions. The court explainedthat the judge’s conduct could not be excused by anintention to “’educate’” the public about the case orto rebut ‘public misperceptions’ purportedly causedby the parties.”

If those were his intentions, he could haveaddressed the factual and legal issues as he sawthem — and thought the public should see them— in his Findings of Fact, Conclusions of Law,Final Judgment, or in a written opinion. Or hecould have held his tongue until all appeals wereconcluded.

Comments following reversal on appeal

When reversed on appeal, a judge may be tempt-ed to defend the original decision or criticize theappellate decision. Such an analysis, however, is aninappropriate comment on a pending case, createsthe appearance that the judge intends to ignore theappellate court’s order, and undermines the properadministration of justice.

For example, the Maine Supreme Court heldthat the exception for explaining for public informa-tion the procedures of the court did not justify ajudge’s defense of sentences that he had imposedafter the sentences had been reversed on appeal. Inthe Matter of Benoit, 523 A.2d 1381 (1987). Thenine cases had been remanded for re-sentencing tothe judge who imposed the original sentences. In let-ters to the editors of four newspapers, the judge crit-icized the decision vacating the sentences, defended

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the sentences he had previously imposed, and com-mented on the facts of the cases and the sentencingfactors he had applied. Newspapers throughout thestate published his letters. The court concluded:

It is difficult to conceive of a more egregious vio-lation of the plain proscription of [the prohibi-tion on commenting on pending cases] than thatwhich has occurred in this case. By publishinghis letters, the content of which made readilyapparent his lack of impartiality, Judge Benoit, atthe very least, created the appearance that thejudicial system was unfair. More specifically, cit-izens whose legal rights and freedoms were atrisk, were subjected to a public prejudgment oftheir cases by the very judge who was assigned toreimpose sentence. We cannot tolerate such aconspicuous display of judicial bias regardingpending cases.

Similarly, the New York State Commission onJudicial Conduct disciplined two judges for com-menting on cases remanded to them by the appellatecourt. In one case, speaking with a reporter for theBuffalo News about two criminal cases that had beenreversed and remanded to him, the judge discussedthe basis for his rulings, indicated that he continuedto believe that his original decisions were correct,and stated, “I stand firmly by my ruling.” In theMatter of Maislin, Determination (August 7, 1998)(www.scjc.ny.us/maislin.htm) (admonished for thisand other misconduct).

The Commission also stated a second judgeshould not have commented to a reporter after anappellate court had overturned the conviction of adefendant on the ground that the judge had improp-erly responded to a note from the jury during delib-erations without notice and outside the presence ofthe defendant and his counsel. In the Matter ofO’Brien, Determination (March 4, 1999) (www.scjc.ny.us/o’brien.html) (admonished for this and othermisconduct). Based on the judge’s comments, a storywas published about the case, with the headline,“Judge and DA at Odds. A Man’s Convictions WereOverturned. The Prosecutor Said He Is OffendedThat the Judge Is ‘Shifting Blame’ to His Office.”The story said that the judge was “satisfied it was theright thing to do,” and reported the judge’s remarkthat the outcome of the appeal might have been dif-ferent had the district attorney presented oral argu-ment. The Commission held that the rule against

commenting on pending cases was clear andunequivocal, rejecting the judge’s argument thatthere is an exception for explanations of a judge’sdecision-making process. Noting that the judge hadinsisted that his actions in the case had been appro-priate even though a higher court had ruled other-wise, the Commission concluded that the judge hadundermined the proper administration of justice byimplicitly criticizing the appellate court. TheCommission also noted that the judge had improp-erly blamed the district attorney for failing to arguethe case on appeal, that the judge’s statements weremisleading in that they described the reversal asmerely a disagreement between the two courts, andthat the judge should not have publicly suggestedthat the district attorney appeal the decision.

Further, the Minnesota Board on JudicialStandards publicly reprimanded a judge for makingstatements in a television broadcast concerning adefendant in two murder cases pending beforeanother judge in the same court, when at the timeof the telecast, the jury selection in the case hadbeen completed, the trial was in progress, and thejury was not sequestered. The judge had presidedover the defendant’s first murder trial, which hadbeen reversed on appeal. According to newspaperreports, the judge stated the defendant “does agood job of portraying himself as innocent. I thinkhis first conviction was amply supported by theevidence, and I think that the facts that werebrought in that case show that he is a dangerousperson.” Press Release (Porter) (May 28, 1992). Butsee Office of Disciplinary Counsel v. Souers, 611N.E.2d 305 (Ohio 1993) (a judge’s defense of hissentencing order, while less than judicious, wasprovided to publicly explain his procedure in theunderlying criminal case and could not be the basisfor discipline).

Responding to criticism about a pending case

The temptation for a judge to make a commentin a pending case is probably strongest if the judge ispublicly criticized about his or her handling of thecase. In response to such criticism, a judge may:

• explain court procedures,

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• respond to criticism directed toward judicialprocedures, the law, or the courts generally inregard to litigation, and

• give information to the public as to the statusof the litigation.

California Advisory Opinion 24 (1976). However,the judge’s remarks must be circumspect and with-out suggestion of partiality or premature determina-tion. According to the California judicial ethicscommittee, a judge should not:

• comment as to future decisions the judge oranother trier of fact may make,

• comment as to his or her opinions regardingthe credibility of witnesses or the validity ofevidence, or

• respond to criticism directed toward the judgeon the merits of the litigation.

Similarly, the Texas judicial ethics committeestated that a judge may not respond publicly tounfair criticism of his actions in a case that was stillpending. Texas Advisory Opinion 209 (1997).Critics had alleged that the judge, who was presid-ing in a massive tort litigation action, was biasedbecause of personal ties to the attorney for theplaintiffs and suggested that the judge’s politicalinterests favored plaintiffs, who resided in thejudge’s county.

The committee noted that it sympathized withthe judge’s desire to refute unfair or false criticism ofhis actions and defend his reputation. However, itconcluded that a public response to unfair criticismwent beyond explaining procedures to the publicand was, therefore, prohibited.

To engage in an editorial debate with his criticsabout the merits or motivations of his decisionnot to recuse himself or his ability to be impar-tial would place the judge in the position of tak-ing sides outside the courtroom for or againstparties urging certain positions inside the court-room. That is to say that the judge’s editorialefforts to defend his impartiality could unwit-tingly cast further doubt on his impartiality.

A judge asked the Louisiana advisory committeewhether the judge could respond to questions fromthe press prompted by a citizen’s letter published in

the local newspaper that contained inaccurate ormisleading statements about a ruling or other actionby the judge in a pending case. The committeeadvised that the judge could not respond “except tothe limited extent of explaining procedures of thecourt.” Louisiana Advisory Opinion 144 (1997). Thecommittee stated that such a explanation couldinclude:

• general background information relating tothe operation of the court system, and

• an explanation in legal terms of the concepts,procedures, and issues involved.

The committee stressed that the judge’s primary goalin responding must be to educate the public and tomaintain the dignity of the judicial office and cau-tioned that the judge should avoid personalizing hisor her comments and should be objective and dis-passionate.

Several other committees have given similaradvice in the context of a pending case.

• A judge may not discuss issues involving apending case with a group that was formed asa result of the judge’s sentence in the case(Florida Advisory Opinion 85-9).

• A judge may not publicly respond to letters tothe editor criticizing his or her conductinvolving a pending case in which the judgehad recused (Florida Advisory Opinion 85-9).

• A judge may not comment publicly about apending matter in the judge’s court despitefalse, misleading, and inaccurate public state-ments made by a litigant (New York AdvisoryOpinion 94-22).

The California committee concluded that “criti-cism directed toward a judge in the context of themerits of pending or imminent litigation is moreappropriately answered by a bar association or barofficials.” California Advisory Opinion 24 (1976).Recognizing that judges cannot publicly defendthemselves against improper criticism, many stateand local bar associations have such committees. Forexample, the Committee on Public Comment of theDelaware Bar Association was created “to advise andconsult with the President [of the Association] inidentifying and framing responses to unwarranted

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criticisms of members of the judiciary and to mattersappearing in the media that affect the legal profes-sion, the judicial system, or the administration ofjustice,” and to assist “in preparing statements inconnection with such criticisms and matters onbehalf of the Association.” See also American BarAssociation, Model Program Outline for State, Localand Territorial Bar Associations: Suggested Program forthe Appropriate Response to Criticism of Judges andCourts (Judicial Division 1998).

COMMENTING ON A CASEPENDING ON APPEAL

Continuing the limitation on public commentsuntil appeals are exhausted was implied in the 1972code. Commentary to Canon 3B(9) of the 1990model code expressly provides that the “require-ment that judges abstain from public commentregarding a pending or impending proceedingcontinues during any appellate process and untilfinal disposition.”

The New Jersey advisory committee prohibit-ed a judge from participating as a panelist for asymposium to discuss a decision authored by thejudge and pending before the supreme court. NewJersey Advisory Opinion 3-88; New Jersey AdvisoryOpinion 2-88. The committee explained itsadvice.

• Extra-judicial comments might be used bycounsel in their briefs.

• If the judge sought to defend the opinion, theperception of impartiality would bedestroyed.

• Commenting on a case to assist the appellatecourt is tantamount to an amicus curiae briefin support of the judge’s own opinion, whichis unacceptable.

• The opinion should rest on its own footingwithout further elaboration.

Other advisory committees have given similaradvice:

• A judge may not write a book about one ormore cases over which the judge presidedbefore final disposition of the case. A judgeshould not write about a capital case in whichthe death penalty was imposed before the sen-tence is carried out (Alabama AdvisoryOpinion 99-739).

• A judge may not appear in a television docu-mentary about a case the judge recently triedif the case is pending on appeal (FloridaAdvisory Opinion 98-28).

Judges have been disciplined for commenting on

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cases that were no longer pending before them butwere on appeal.

• A judge should not have given interviews toWest Magazine and Time, in which he publiclycommented on the “no pregnancy” probationconditions he had imposed in two cases whilethose cases were pending on appeal(Broadman v. Commission on JudicialPerformance, 959 P.2d 715 (California 1998),cert. denied, 525 U.S. 1070 (1999) (censuredfor this and other misconduct)).

• A judge should not have discussed a childcustody case on a nation-wide televisionprogram while an appeal from his decisionswas pending. (Prior to the discipline pro-ceedings, the judge had been disqualifiedfrom the custody case as a result of hisremarks. See discussion at page 4.) Thejudge had said, among other things, “Myprimary concern, and I want to make thisclear, is for the welfare of that child, and Idon’t think it is in the welfare, the best inter-ests of a child 13 years old to see her moth-er sleeping with a man that is not her father,and next week there may be a different manin the house, and the third week there maybe a third one” (In the Matter of Hey, 425S.E.2d 221 (West Virginia 1992) (censure).(Subsequently, the West Virginia SupremeCourt of Appeals held that the judge’sremarks were not “judicial acts” for whichhe should have absolute immunity from themother’s suit for defamation. Roush v. Hey,475 S.E.2d 299 (1996).)

• A judge should not have commented about alawsuit while her decision was on appeal. Thejudge had presided over the jury trial of anaction for breach of contract based on thealleged withdrawal by the defendant, actressKim Basinger, from the plaintiff ’s movie“Boxing Helena,” which was completed andreleased with a different female lead. There wasa verdict for the plaintiff, and the defendantsfiled a notice of appeal. While the appeal waspending, the judge was quoted in a newspaperarticle as saying, “The fact of the matter is thatthroughout the trial, a significant portion of

my rulings were in favor of Kim” (PublicAdmonishment of Chirlin (CaliforniaCommission on Judicial Performance August28, 1995) (admonishment)).

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COMMENTING ON A CASE PENDING BEFOREANOTHER JUDGE IN THESAME JURISDICTION

Comments about a case pending before anotherjudge or jury in the same court or jurisdiction as thecommenting judge can also be reasonably expectedto affect its outcome or impair its fairness or at leastcreate that appearance, and, therefore, falls withinthe proscription of Canon 3B(9). A rule prohibitingsuch comments guards against the danger that ajudge would feel pressured or would appear to feelpressured by the comments of a peer and colleagueor that a jury would accord deference or wouldappear to accord deference to an opinion expressedby a judge. Moreover, such a rule ensures that pro-ceedings remain immune from outside influences,even if such influences are not specially prejudicial.Finally, the prohibition guards against the creationof a public impression that citizens are not beingtreated fairly because different judges may not agreeas to how those citizens’ rights should be decidedunder the law. Ross, “Extrajudicial Speech: Chartingthe Boundaries of Propriety,” 2 Georgetown Journalof Legal Ethics 589 (1989); Matter of Benoit, 523A.2d 1381 (Maine 1987).

• A member of the supreme court may notrespond to media reports concerning theaction or inaction of members of the courtbased on testimony from a completed trial ina criminal case in federal district court(Arkansas Advisory Opinion 2000-2).

• A judge may not participate on a mediaresponse team that responds to negative orinaccurate media stories about the legal pro-fession, the judiciary, and the courts (TexasAdvisory Opinion 265 (2000)).

COMMENTING ON ANIMPENDING CASE

The prohibition on making public commentsapplies to impending cases as well as pending cases.Thus, “the prohibition begins even before a caseenters the court system, when there is reason tobelieve a case may be filed.” United States v.Microsoft Corp., Nos. 00-5212 and 00-5213 (U.S.Court of Appeals District of Columbia Circuit June28, 2001). For example, a case is “impending” if acrime is being investigated, if someone has beenarrested although not yet charged, if legislation hasbeen passed that will probably be challenged, or ifthere are other indications that a case will be filed.

For example, the Missouri Supreme Court heldthat a judge should not made comments about pos-sible charges that might be filed against a man arrest-ed for abusing his ex-wife. In re Conard, 944 S.W.2d191 (Missouri 1997) (30-day suspension for this andother misconduct). The judge had stated, “At themost, this is a third degree assault, at the very most,and it probably won’t even be filed, so there was nomerit to the claims.” The Court held that the state-ment reflected a pre-judging of the merits of crimi-nal charges that might be filed without the benefit ofinvestigation, evidence, or argument, revealed anattitude that was a discredit to the judiciary, andcould be interpreted as an attempt to influencewhether charges would ultimately be broughtagainst the ex-husband.

Similarly, the Indiana Commission on JudicialQualifications held that a judge is prohibited frommaking public comments about the credibility orgood faith of a witness in an impending proceeding.Statement of Admonition of Letsinger (June 13, 1997).In response to allegations that more than $8,000 wasmissing from the court probation department funds,the judge stated that the head of the probationdepartment, who presumably would play a key rolein the investigation and possible court proceedings,was stonewalling and being less than candid andforthcoming. See also In re Schenck, 870 P.2d 185(Oregon), cert. denied, 513 U.S. 871 (1994) (ajudge’s letter to the editor and guest editorial criti-cizing the district attorney were a direct comment onthe quality of prosecution to be expected in pending

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and impending criminal matters that were to comebefore him).

Judicial ethics committees have given similaradvice.

• When it was evident that parents of childreninitially placed in the care of the Departmentof Children and Families were seeking recov-ery of their attorney’s fees for defending thematter from the state after the dependencypetition was denied and the children werereturned to the state, a judge should notanswer extensive, detailed questions inresponse to a letter from a local newspaper,about the emergency shelter hearing (FloridaAdvisory Opinion 2000-30).

• Following published reports criticizing ajudge’s actions in a case indicating some par-ties may move to overturn the actions, a judgeshould not comment publicly out of courtabout the merits of the impending motions(U.S. Compendium of Selected Opinions, § 3.9-1(2001).

COMMENTING ON A PENDING CASE IN ANOTHER JURISDICTION

It might be argued that, under the 1990 modelcode, a judge may comment about a pending orimpending case in another jurisdiction because, forexample, a California judge or jury is not likely tohear about, much less be affected by, the commentsof a New Jersey judge. However, inferring an exemp-tion for cases in other jurisdictions from the pre-scription on public comments would be contrary tothe retention of the “in any court” language in the1990 model code revision.

Moreover, comments on a case pending inanother jurisdiction may be prohibited by theCanon 2A requirement that a judge “act at all timesin a manner that promotes public confidence in theintegrity and impartiality of the judiciary.” A judgefrom one jurisdiction criticizing the rulings or tech-nique of a judge from a different jurisdiction”threatens public confidence. In re Broadbelt, 683A.2d 543 (New Jersey 1996), cert. denied, 520 U.S.1118 (1997). One commentator has decried the“unseemly spectacle” of judges commenting onother judges’ cases. Rothman, California JudicialConduct Handbook at 142 (2d ed. 1999).

Similarly, in advising that a judge could notappear on Court TV to identify important legalissues in out-of-state actions and to discuss their pro-cedural settings, the New York judicial ethics adviso-ry committee stated:

[W]hat constitutes an important legal issue inthe particular case being commented on mayvery well be a subject of dispute between the lit-igants. Remarks by the judge could thus be seenas lending a judicial imprimatur to legal posi-tions being advanced by one of the parties in anexisting legal action, which legal positions maynot have yet been ultimately determined.

New York Advisory Opinion 93-133. The codeadopted for New York judges in 1996 affirms thatthe rule applies to cases in other jurisdictions,adding “any court within the United States or itsterritories” to its version of the comment restric-tion.

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A judge who had made repeated televisionappearances to comment on the O.J. Simpson casewas sanctioned by the New York State Commissionon Judicial Conduct. The judge commented on thequality of proof, the effectiveness of the strategiesemployed by the attorneys and the credibility of wit-nesses, including Simpson. The Commission notedthat “his television appearances went well beyondexplanations of the law and the legal system.” In theMatter of McKeon, Determination (August 6, 1998)(www.scjc.ny.us/mckeon.htm) (censure for this andother misconduct).

Unlike the model code, several states haveexpressly established different rules for a judge’s pub-lic comments depending on where the case is pend-ing. The restriction in North Carolina, for example,applies only to “a pending or impending proceedingin any state or federal court dealing with a case orcontroversy arising in North Carolina or addressingNorth Carolina law.” Similarly, the restrictionapplies only to comments about proceedings “in anycourt within the judge’s jurisdiction” in the Oregoncode and about proceedings that “may come beforethe judge’s court” in the Texas code.

SCHOLARLY TEACHINGAND WRITING

One category of comments the 1990 model codeintended to permit by adopting the “might reason-ably be expected to affect [a proceeding’s] outcomeor impair its fairness” qualification in the restrictionon public comments were comments made duringscholarly presentations on cases pending in otherjurisdictions. The reporter for the ABA committeethat drafted the 1990 model code explained that“judges in their extra-judicial teaching and writingoften refer to pending or impending cases in otherjurisdictions without diminishing the fairness ofthose cases or the appearance of judicial impartiali-ty.” Milord, The Development of the ABA JudicialCode at 21 (1992).

This exception was also implied in the 1972model code restriction. Interpreting that provision,the New York advisory committee stated that a judgewho teaches a course in criminal justice and relatedtopics may comment in the classroom on actualcases pending in courts in other jurisdictions. NewYork Advisory Opinion 95-105. The committee rea-soned that the code provision allowing judges to lec-ture and teach about the law “obviously contem-plate[d] a reasonable degree of academic freedomwithin the confines of a class room.” The commit-tee concluded that “[e]ngaging in discussion withstudents about current events involving cases beingtried in other localities, generally speaking, can in noway negatively impact the criminal justice system.”The committee did caution that the judge should:

• refrain from making gratuitous and unneces-sarily controversial statements about pendingcases, and

• avoid any discussion of cases pending withinthe general jurisdictional locale of the judge’scourt and the college campus.

In a subsequent opinion, the committee statedthat a judge may not lecture at a law school about acase over which the judge recently presided and inwhich an appeal was likely. New York AdvisoryOpinion 97-132. The committee also stated that ajudge who is presiding over a criminal proceedingthat was originally a capital punishment case may

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not comment specifically on the case, but may speakat a law school alumni gathering on capital punish-ment issues generally, including potential amend-ment of statutes governing fees for capital defensecounsel. New York Advisory Opinion 98-126 and129.

Some states have added an express “educationexemption,” at least for cases not involving the judgemaking the comments.

• The Delaware code and the Code of Conductfor U.S. Judges add that the proscription doesnot extend “to a scholarly presentation madefor purposes of legal education.”Commentary states, “If the public commentinvolves a case from the judge’s own court,particular care should be taken that the com-ment does not denigrate public confidence inthe integrity and impartiality of the judiciaryin violation of Canon 2A.”

• The California code adds: “Other than casesin which the judge has personally participat-ed, this Canon does not prohibit judges fromdiscussing in legal education programs andmaterials, cases and issues pending in appel-late courts. This education exemption doesnot apply to cases over which the judge haspresided or to comments or discussions thatmight interfere with a fair hearing of thecase.”

COMMENTING WHEN A CASE IS NOLONGER PENDING

Some judicial ethics committees allow a judge tocomment about a case the judge has decided afterfinal disposition (including all appeals), althoughadvising that caution is still necessary.

• In referring to a final criminal case, the judgeshould consider whether the comments mightafford a basis for collateral attack.

• In referring to any final case, the judge shouldavoid sensationalism and comments that mayresult in confusion or misunderstanding ofthe judicial function or detract from the dig-nity of the judicial office.

• A judge should not reveal deliberative process-es or place in question the judge’s impartialityin future cases.

U.S. Advisory Opinion 55 (1977); U.S. Compendiumof Selected Opinions, § 3.9-1 (2001).

The Arizona judicial ethics committee statedthat a judge may write articles for publication aboutthe reasoning process by which he or she reached adecision in a particular case if the case has been fullyresolved, but the committee imposed conditions onthe judge’s commentary. Arizona Advisory Opinion95-4. The article:

• must be written in a manner that casts no rea-sonable doubts on the judge’s capacity to actimpartially (Canon 4A(2)),

• must promote public confidence in theintegrity and impartiality of the judiciary(Canon 2A)),

• must not demean the judicial office (Canon4A(2)),

• must not interfere with the proper perform-ance of judicial duties (Canon 4A(3)), and

• must not disclose any non-public informationabout the case that was acquired by the judgein his or her judicial capacity (Canon 3B(11)).

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have advised against commenting about a case evenwhen the case is final. For example, the New Jerseyadvisory committee stated that a judge should not“clarify, defend, or justify any of the judge’s decisionsor opinions, or reasoning therein even in the absenceof an appeal.” New Jersey Guidelines for ExtrajudicialActivities, III.A.2.b. The Alabama judicial ethicscommittee discouraged a judge from writing a bookabout one or more cases over which the judgepresided even after final disposition. AlabamaAdvisory Opinion 99-739.

The Texas advisory committee stated that ajudge may not write a newspaper article discussinghis or her position in a case in which the judge par-ticipated even though the case had been finallyresolved. Texas Advisory Opinion 191 (1996). Thatcommittee stated, “Even though a matter has alreadybeen decided it can be revisited and the opinion/edi-torial would be talking about more than just partic-ular procedures of the court.” (The Texas code pro-hibits public comment that “suggests to a reasonableperson the judge’s probable decision on any particu-lar case.” However, that difference between themodel code and the Texas code does not seem toaffect the reasoning of the advisory committee.)Further, as the request was from an appellate judge,the opinion cited a unique provision in the Texascode that provides:

The discussions, votes, positions taken, and writ-ings of appellate judges and court personnelabout causes are confidences of the court andshall be revealed only through a court’s judg-ment, a written opinion or in accordance withSupreme Court guidelines for a court approvedhistory project.

If a judge is criticized about a case thatis no longer pending

“Nothing in the Code of Judicial Conduct pre-vents a judge from making a dignified response topublic criticism” that does not involve a case pend-ing or about to be brought before the court.California Advisory Opinion 24 (1976). A judge whohad been the subject of a negative letter to the editorabout a case that was no longer pending asked theNew York advisory committee if he could respond.Entitled “System is Frustrating,” the letter published

in a local newspaper was critical of a court systemwhere “judges and lawyers get together and decidewho is right and who is wrong before they know thewhole story.” It also stated that the “whole countryis slowly going down the tube and people of thejudicial system don’t care.” The article did not iden-tify by name any particular case or judge, but theinquiring judge knew which case the letter referredto by the names of the writers. The judge wanted torespond in a letter indicating that the author’s state-ments were “completely false and unfounded, sinceboth parties were represented by counsel, a fact-find-ing was held at which the parties testified underoath, there never was a pre-trial conference with orwithout the parties, and the entire matter is on therecord.”

The New York committee advised that, becausethe case was no longer pending, the judge was at lib-erty to publicly correct any of the procedural mis-conceptions in the letter. New York Advisory Opinion92-13. However, the committee warned that thejudge must:

• scrupulously avoid personalizing the com-ments,

• refrain from invective, and

• be objective and dispassionate so as not todetract in any way from the dignity of thejudicial office.

In addition, the committee stated that “[w]hile noethical objection is apparent to the judge’s answer-ing, the Committee considers this an unwisecourse,” noting that a “judge must expect to be thesubject of public scrutiny and, therefore, mustaccept criticism, however meritless, that might beviewed as opprobrious by the ordinary citizen.” Seealso Alabama Advisory Opinion 97-649 (a trial judgeshould not explain the rationale for a sentenceimposed in a criminal case to a critic of that sentenceeven if the time for an appeal has expired and thejudge is willing to recuse from any post-convictionpetition brought by the defendant).

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THE FIRST AMENDMENT

Any limitation on speech invites a challenge onFirst Amendment grounds, but the prohibition onjudges commenting on pending cases has withstoodconstitutional scrutiny. The decisions acknowledgethat judges do not give up their First Amendmentrights when they take the bench but stress that thoserights can be circumscribed in light of the state’scritical interest in an independent and impartialjudiciary.

In response to a judge’s challenge to an advisoryopinion forbidding the judge from appearing on tel-evision to comment on cases pending in other juris-dictions, the New Jersey Supreme Court rejected thejudge’s argument that the prohibition violated theFirst Amendment. In re Broadbelt, 683 A.2d 543(1996), cert. denied, 520 U.S. 1118 (1997). Thecourt applied an analysis that allows the regulationof speech if it furthers a substantial governmentalinterest unrelated to suppression of expression, andif it is no more restrictive than necessary. The courtheld that avoiding material prejudice to an adjudica-tory proceeding, preserving the independence andintegrity of the judiciary, and maintaining publicconfidence in the judiciary are obviously interests ofsufficient magnitude to uphold the restrictions. Thecourt also stated it was satisfied that the restrictionon a judge’s speech was no greater than necessary.

In Broadman v. Commission on JudicialPerformance, 959 P.2d 715 (California 1998), cert.denied, 525 U.S. 1070 (1999), the CaliforniaSupreme Court applied an analysis from casesinvolving the free speech rights of public employees.The California Commission on JudicialPerformance had recommended that a judge be cen-sured for giving interviews to two magazines inwhich he had publicly commented on the “no preg-nancy” probation conditions he had imposed in twocases while those cases were pending on appeal (aswell as other misconduct).

The judge argued that the standard for lawyerscommenting on cases applied to judges and, there-fore, under Gentile v. State Bar of Nevada, 510 U.S.1030 (1991), he had a First Amendment right tomake public comments on pending cases unless thosecomments posed a substantial likelihood of materialprejudice to a fair trial. Rejecting that standard, the

California Supreme Court stated that the public doesnot expect a high degree of neutrality or objectivityfrom lawyers but judges must be and be perceived tobe neutral arbiters of both fact and law who apply thelaw uniformly and consistently. The court also stat-ed that judges’ public comments will be received bythe public as more authoritative than those of lawyersand inappropriate public comments by judges pose agreater threat to the fairness of judicial proceedingsthan improper comment by lawyers.

Using the standard from public employee speechcases, the court balanced the interest of the judge, asa citizen, in commenting on matters of public con-cern and the interest of the state, as an employer, inpromoting the efficiency of the public services it per-forms through its employees.

The Broadman court concluded that the generalinterest of judges in making public comments oncourt proceedings is outweighed by the interest ofthe judicial system in maintaining impartiality.Specifically, the court stated that a judge’s commentson a case on appeal from the judge’s decision maycreate the impression that the judge has abandonedthe judicial role to become an advocate for thejudge’s own ruling or for the position advanced byone of the parties. The court also held that therestrictions are narrowly drawn because they do notapply to final proceedings, to public statements byjudges in the course of their official duties, or toexplanations of court procedures.

Applying the analysis from public employeespeech cases, the Oregon Supreme Court also con-cluded that imposition of a sanction on a judge forcriticizing a district attorney did not violate thejudge’s freedom of speech. In re Schenck, 870 P.2d185, cert denied, 513 U.S. 871 (1994). The judgehad criticized the prosecutor in a letter to the editorand guest editorial, both published in a local paper.The court found that the code restriction promotedan interest in protecting both the fact and theappearance of the impartiality and integrity of thejudiciary and that that interest is “profound.” Thecourt held that the prohibition on making com-ments on pending cases is a limited restriction on thejudge’s right to speak that directly related to and wasnarrowly drawn so as to further the governmentalinterest.

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SUMMARY

Canon 3A(6) of the 1972 American BarAssociation Model Code of Judicial Conduct stated:“A judge should abstain from public comment abouta pending or impending proceeding in any court.”Canon 3B(9) of the 1990 model code provides, “Ajudge shall not, while a proceeding is pending orimpending in any court, make any public commentthat might reasonably be expected to affect its outcomeor impair its fairness” (emphasis added).

Under both the 1972 and 1990 model codes, ajudge is clearly prohibited from commenting on themerits of cases pending before the judge because anysuch comments could “reasonably be expected toaffect its outcome or impair its fairness.” The rulerestricts any comment that reflects a predispositionin the case but also comments that might be charac-terized as minor or not on the merits. Off-the-benchcomments about a pending case may also disqualifythe judge from the case if the comments cast doubton the judge’s ability to act impartially.

An express exception to the prohibition on mak-ing public comments on pending cases, under boththe 1972 and the 1990 model codes, allows a judgeto make public statements “explaining for publicinformation the procedures of the court.” Thus,judges may explain the legal elements of cases, andlegal concepts or principles such as burden of proof,innocent until proven guilty, and knowing waiver ofconstitutional rights, and procedural phases of law-suits.

An extra-judicial explanation by a judge of his orher ruling, however, is not considered an explanationof court procedures. A judge may not attempt toexplain an action taken in court with statements thatare not in the official transcript, court orders, orwritten opinions. This restriction includes repeatingor summarizing out of court what was said in thecourtroom.

When a judge is reversed on appeal, he or sheshould not defend the original decision or criticizethe appellate decision. Such comment creates theappearance that the judge intends to ignore theappellate court’s order and undermines the properadministration of justice.

In response to public criticism about his or herdecision in a case a judge may explain court proce-

dures, respond to criticism directed toward judicialprocedures, give information as to the status of thelitigation, inform a reporter or the public of the pro-cedure for obtaining a transcript or order, andexplain the ethical constraints on a judge’s ability todiscuss pending cases. However, the judge shouldnot discuss his reasons for the ruling.

Judges are expressly prohibited from comment-ing on a case that is on appeal. Comments about acase pending before another judge or jury in thesame court or jurisdiction are also prohibitedbecause such comments could reasonably be expect-ed to affect its outcome or impair its fairness or atleast create that appearance. Finally, the prohibitionon making public comments applies to impendingcases, in other words, cases where charges are underinvestigation or it otherwise seems probable that acase will be filed.

Because the prescription on public commentsapplies to cases pending “in any court,” the ruleapplies even to a case in another jurisdiction. Thatinterpretation is also consistent with the Canon 2Arequirement that a judge “act at all times in a man-ner that promotes public confidence in the integrityand impartiality of the judiciary.”

Comments on pending cases during scholarlypresentations are permitted. However, while lectur-ing, a judge should not make controversial state-ments about pending cases, discuss cases pendingwithin the general jurisdictional locale of the judge’scourt and the lecture, or discuss a case over whichthe judge recently presided and in which an appeal islikely.

Some judicial ethics committees allow a judge,with caution, to comment about a case the judge hasdecided after final disposition (including allappeals). Other advisory committees, however, haveadvised against commenting about a case even whenthe case is final.

The restriction on commenting on pendingcases has withstood constitutional challenge. Thedecisions acknowledge that judges do not give uptheir First Amendment rights when they take thebench but stress that those rights can be circum-scribed in light of the state’s critical interest in anindependent and impartial judiciary.

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CODE VARIATIONS

• As of April 2001, Alaska, Arizona, Arkansas,the District of Columbia, Florida, Georgia,Hawaii, Indiana, Kansas, Kentucky,Louisiana, Nevada, New Mexico, NorthDakota, Ohio, Oklahoma, Rhode Island,South Carolina, South Dakota, Tennessee,Utah, Vermont, Virginia, Washington, WestVirginia, Wisconsin, and Wyoming haveadopted the “might reasonably be expected toimpair [a proceeding’s] outcome or impair itsfairness” language from the 1990 ABA Modelcode.

• The California code of judicial conduct pro-vides: “A judge shall not make any publiccomment about a pending or impending pro-ceeding in any court . . . .” The Californiacode also states:

Other than cases in which the judge has per-sonally participated, this Canon does not pro-hibit judges from discussing in legal educationprograms and materials, cases and issuespending in appellate courts. This educationexemption does not apply to cases over whichthe judge has presided or to comments or dis-cussions that might interfere with a fair hear-ing of the case.

• The Delaware code provides (emphasisadded): “A judge should avoid public com-ment on the merits of a pending or impend-ing action, requiring similar restraint by courtpersonnel subject to the judge’s direction andcontrol. This proscription does not extend topublic statements made in the course of thejudge’s official duties, to the explanation ofcourt procedures, or to a scholarly presenta-tion made for purposes of legal education.”Commentary provides in part: “If the publiccomment involves a case from the judge’s owncourt, particular care should be taken that thecomment does not denigrate public confi-dence in the integrity and impartiality of thejudiciary in violation of Canon 2A.”

• The Nebraska code provides: “A judge shallnot, while a proceeding is pending or impend-ing in any court, make any public commentthat reasonably might be expected to interferesubstantially with a fair trial or hearing.”

• The New York code provides (emphasisadded): “A judge shall not make any publiccomment about a pending or impending pro-ceeding within the United States or its territo-ries.”

• The Connecticut code provides (emphasisadded):

A judge should abstain from public commentabout a pending or impending proceeding inany court, and should require similar absten-tion on the part of court personnel subject tothe judge’s direction and control. This subdi-vision does not prohibit judges from makingpublic statements in the course of their offi-cial duties, from explaining for public infor-mation the procedures of the court, or fromcorrecting factual misrepresentation in thereporting of a case.

• The Georgia code adds a definition for “com-ment”:

“Comment” in connection with a case refersto valuative statements judging the profes-sional wisdom of specific lawyering tactics orthe legal correctness of particular court deci-sions. In contrast, it does not mean the giv-ing of generally informative explanations todescribe litigation factors including: theprima facie legal elements of case types pend-ing before the courts, legal concepts such asburden of proof and duty of persuasion orprinciples such as innocent until proven guiltyand knowing waiver of constitutional rights,variable realities illustrated by hypotheticalfactual patterns of aggravating or mitigatingconduct, procedural phases of unfolding law-suits, the social policy goals behind the lawsubject to application in various cases, as wellas competing theories about what the lawshould be.

• The Louisiana code states: “A judge shall not,while a proceeding is pending or impendingin any court, make any public comment thatmight reasonably be expected to affect its out-20

American Judicature Society

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come or impair its fairness or bring the judici-ary into disrepute . . . .” Louisiana did notadopt the provision permitting comment on acase in which a judge is a party.

• The North Carolina code provides (empha-sis added): “A judge should abstain frompublic comment about a pending orimpending proceeding in any state or federalcourt dealing with a case or controversy aris-ing in North Carolina or addressing NorthCarolina law . . . .”

• The Oregon code provides (emphasis added):“A judge shall not, while a proceeding ispending in any court within the judge’s juris-diction, make any public comment thatmight reasonably be expected to affect theoutcome or impair the fairness of the pro-ceeding.” The Oregon code adds that therule does “not prohibit a judge . . . fromestablishing a defense to a criminal charge orcivil claim against the judge or from other-wise responding to allegations concerning thejudge’s conduct in the proceeding.”

• The Texas code provides (emphasis added):“A judge shall abstain from public commentabout a pending or impending proceedingwhich may come before the judge’s court in amanner which suggests to a reasonable personthe judge’s probable decision on any particularcase.” The Texas code also provides: “A judgeshall not disclose or use, for any purpose unre-lated to judicial duties, nonpublic informationacquired in a judicial capacity. The discussions,votes, positions taken, and writings of appel-late judges and court personnel about causesare confidences of the court and shall berevealed only through a court’s judgment, awritten opinion or in accordance withSupreme Court guidelines for a courtapproved history project.”

• The Code of Conduct for U.S. Judges pro-vides (emphasis added): “A judge shouldavoid public comment on the merits of apending or impending action, requiring simi-lar restraint by court personnel subject to thejudge’s direction and control. This proscrip-

tion does not extend to public statementsmade in the course of the judge’s officialduties, to the explanation of court procedures,or to a scholarly presentation made for purpos-es of legal education.” Commentary provides inpart: “If the public comment involves a casefrom the judge’s own court, particular careshould be taken that the comment does notdenigrate public confidence in the integrityand impartiality of the judiciary in violationof Canon 2A.”

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