The 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.

In 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(

As 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.”

The 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.

Section 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.

Section 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).

Section 3B(9) and the Guidance are appended here and also available on the Supreme Judicial Court’s website at www.mass.gov/sjc.