Supreme Judicial Court Adopts Amendments to
Canon 3, Section B (9)
of Judicial Code of Conduct Concerning Public Comments
Supreme Judicial Court has adopted amendments to Canon
3, Section B(9), of the Code of Judicial Conduct (Rule
3:09). The amendments are effective on January 1, 2010.
2008, the Justices appointed an Ad Hoc Advisory Committee
to Study Section 3B(9) of the Code of Judicial Conduct,
chaired by Superior Court Justice E. Susan Garsh. After
reviewing the committee's report, separate statements
of two members, and public comments on the report, the
Justices invited further public comment on a revised
proposed version of Section 3B(9) and an accompanying
document titled proposed Supreme Judicial Court Guidance
Regarding the Issuance of Explanatory Memoranda. Following
the conclusion of the public comment period in July 2009,
the Justices made some additional minor revisions to
Section 3B(9) and the Guidance.
amended, Section 3B(9) continues to require that a judge
abstain from public comment about a pending or impending
proceeding in any Massachusetts court. The revised Commentary
states that "[t]he section's restrictions on judicial
speech are essential to the maintenance of the independence,
impartiality, and integrity of the judiciary."The Commentary
encourages judges to explain the basis for their decisions
on the record, stating that "[b]y helping litigants to
understand the basis for decisions in cases, the judge
also promotes public understanding of judicial proceedings."
Commentary references the Supreme Judicial Court Guidance
Regarding the Issuance of Explanatory Memoranda, which
is contained in Appendix A. The Guidance encourages judges
to explain the basis for their decisions on the record
at the time the decisions are made, including decisions
concerning bail and sentencing. When the judge has not
indicated at the time that he or she issues the underlying
order that a written explanatory memorandum will be forthcoming,
and such a memorandum has not been requested by a party
or by an appellate single justice or court, the Guidance
provides factors that a judge should weigh before issuing
an explanatory memorandum.
3B(9) continues to permit a judge to explain for public
information the procedures of the court, general legal
principles, or what may be learned from the public record
in a case. By way of example, the Commentary notes that
a judge may explain to the media or general public the
procedures and standards governing dangerousness hearings
or requests for restraining orders.
3B(9) has additionally been revised to expand the educational
exemption concerning pending appellate cases and to permit
a judge to make public comment concerning his or her
conduct (defined to refer to the manner in which a judge
behaves and not to the substance of a judge's rulings).
3B(9) and the Guidance are appended here and also available
on the Supreme Judicial Court's website at www.mass.gov/sjc.