Commenting Publicly About Matter in Which Involved

September 11, 1998

CJE Opinion No. 98-15

You have asked a number of questions, some general, others specific, with respect to a judge's ability to comment publicly about a matter in which the judge has been involved. All involve Canon 3(A)(6), which provides in relevant part:

"A judge should abstain from public comment about a pending or impending proceeding in any court . . . . This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court."

 You first ask: "Are there any circumstances under which a Judge can talk to the media to explain or state reasons for which an action was taken? If yes, under what circumstances may a Judge speak to the media?"

As to that inquiry, Rule 2 of our Rules states that "The Committee shall not render opinions on hypothetical questions. . . ." Your first inquiry, referring not to particular facts but rather to "any circumstances" is so broad as to fall within the prohibition of Rule 2.

Your next inquiry, "A", asks: "In the context of a Juvenile Transfer Hearing, is a case still pending, or impending if a Judge transfers the Juvenile to the adult Court for trial? What if a Judge does not transfer the Juvenile, but retains jurisdiction in the Juvenile Court? Would those circumstances in either case preclude a Judge from talking to the media?" We are prepared to treat these questions as involving an issue that recurs in your court and hence is not "hypothetical." In our view, a case is still pending, as far as the purpose of the canon is concerned, if the judge has transferred the matter to another court. The canon refers to cases that are pending in "any" court. Indeed, you would be prohibited from commenting on the case even if it had never been in your court but was pending in another court. The Reporter's Notes to this Model Code provision indicate that the policy behind the canon was the notion that judges' comments might interfere with the parties' right to a fair trial. See Thode, Reporter's Notes to Code of Judicial Conduct, 55 (1973). As the canon indicates, however, you are free to talk to the media if your discussion relates to an explanation of the procedures of the court.

Inquiry "B" asks "In the context of a Probable Cause Hearing, is a case still pending, or impending if the Assistant District Attorney still has the option to indict, if a Judge finds no probable cause? Would those circumstances preclude a Judge from talking to the media?" We are also prepared to treat these questions as involving an issue that recurs in your court and hence is not "hypothetical." In our view, as long as there is any reasonable possibility that a criminal, or civil, case may eventuate from the circumstances that were before you in the probable cause hearing, the prohibitions of Canon 3(A)(6) apply. Moreover, it should be noted that even if Canon 3(A)(6) does not apply, there are other provisions of the Canons that may have a bearing on what you may say to the media, if you choose to talk to the media. Perhaps the most notable one is Canon 2(A), which states that judges should conduct themselves "in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Even if a matter is not pending or impending, judges must be careful in their comments to comply with the principle enunciated in that canon. See also Canons 3(A)(1), (3), and (5); and 5(C)(7). We agree with the advice that the United States Committee on Codes of Conduct gave to a judge planning to write a book about his judicial experiences:

"In writings referring to specific cases which the judge has decided, however, even after their final disposition the judge should be particularly careful to avoid possible exploitation of his judicial position. In any reference to a criminal case he should consider also whether his comments might afford a basis for collateral attack on the judgment.

"In all cases he should avoid sensationalism and comments which may result in confusion or misunderstanding of the judicial function or detract from the dignity of his office . . . ." (Advisory Opinion No. 55).

Your final inquiry is, "If an Assistant District Attorney announces that there will be no indictment, does that conclude a matter as 'impending'? May a Judge then communicate with the media? What restrictions are there, if any?" We are also prepared to treat these questions as involving an issue that recurs in your court and hence is not "hypothetical." It is difficult to answer the first of these questions without any context. If there is any reasonable possibility that the conduct is such that an indictment could issue from another source, state or Federal, or that the conduct might reasonably be the subject of civil litigation, then the answer to your question is no, the announcement is not conclusive. But there might be circumstances when a judge could reasonably conclude that there was no proceeding of any kind that was impending. In such circumstances, a judge who chooses may talk with the media, subject to the cautions expressed in our answer to the previous question.