The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Two Comments on Extrajudicial Comments

Posted by kswisher on Wednesday, December, 16, 2009

There have been (at least) two interesting developments of late in the world of judges’ extrajudicial commentary about their pending cases.  First, Massachusetts loosened its former prohibition on extrajudicial comments in primarily two ways: (1) judges may now respond publicly about their “conduct” in a pending matter, so long as their response is unrelated to the merits of the matter; and (2) judges may now issue an explanatory memorandum, in which they elaborate on their reasons for a previous ruling, so long as the memorandum is not “issued solely to respond to public criticism of the decision” and does “not rely on any information that was not within the record before the judge at the time of the underlying order.”  It might be disputed whether these amendments substantively change black-letter canon law to any significant extent, but they certainly make what is permitted more explicit.  The chief change to the text of the Massachusetts Code is new subsection (D) of Canon 3B(9):

A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge’s impartiality and do not address the merits of any pending or impending judicial decision. 

The full text of the amendment can be found here, and the reports of the ad hoc committee that inspired the amendment can be found here (that committee, however, split on its recommendation to the Supreme Judicial Court, with a majority of the committee recommending a more dramatic loosening of the rules than what the court ultimately adopted).  For a favorable discussion of the Massachusetts’ amendment and a somewhat unfavorable discussion of the amendment’s counterpart in the new Model Code of Judicial Conduct, Rule 2.10(E), see Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  Coincidently, that article was cited by the Eighth Circuit’s recent decision in the Michael Vick case — White v. NFL, 585 F.3d 1129 (8th Cir. 2009) — which brings me to the second development in extrajudicial commenting.

In the White (Vick) case, the court was faced with the question whether the district judge should have recused himself from the proceedings.  The reasons for that question included that the judge (i) had posed for a press picture holding a football in his robe, (ii) had claimed publicly that the NFL team owners (i.e., one of the parties) complain about his rulings “yet even though they complain about it, . . . all they’ve done is make tons of money,” and (iii) had met ex parte with team representatives (but not team owners) before several proceedings.  Interestingly, the Eighth Circuit concluded that — although there was a “danger” in the judge’s behavior and although the judge would have been “well advised not to opine publicly about his role” in related proceedings — he did not violate the prohibition on extrajudicial comments.  Id. at 1140-41.  In judicial ethics opinions, this dichotomy arises quite frequently; a judge’s conduct will be held “inadvisable” under the Canons, but not violative of them.  There is some support for this two-track system — namely, that some violations are violations and some are just “inadvisable” or “imprudent” — in the Preamble to most Codes, but is this two-track system transparent and fair?  Would and should, for instance, a criminal or civil defendant receive the benefit of this vague second track for some lesser violations of criminal or civil law?   

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