Notice Inviting Comment
Proposed Amendments to Canons 4A and 4B of the Massachusetts Code of Judicial Conduct
Notice In December 2011, the Justices of the Supreme Judicial Court established a Committee on the Code of Judicial Conduct, and charged it with recommending amendments to the Massachusetts Code of Judicial Conduct regarding judges' ability to speak to the public on matters related to the administration of justice. The Justices appointed Appeals Court Justice Cynthia J. Cohen as chair of the Committee, and appointed Appeals Court Justice Peter Agnes, District Court Judges Angel Kelley-Brown and Mark Mason, and Boston University Law School Professor Nancy Moore as members.
The Committee on the Code of Judicial Conduct Invites Comments on Proposed Amendments to Canons 4A and 4B of the Massachusetts Code of Judicial Conduct
Following consultation with the Justices, the Committee now publishes for comment proposed revisions to Canons 4A and 4B of the Massachusetts Code of Judicial Conduct. These proposed revisions would amend Canons 4A and 4B of the Massachusetts Code of Judicial Conduct as follows:
The Commentary to Canon 4A:
- The second sentence of the Commentary is revised to emphasize that this Section applies to both law-related and non-law-related activities, and to clarify that the appropriateness of any activity must be assessed in light of the obligations of a judge to perform the duties of judicial office impartially and diligently. This standard is found in Canon 3 ("A judge shall perform the duties of judicial office impartially and diligently") and is a more comprehensive standard than the reference to "act impartially as a judge" contained in the current Commentary to Canon 4A.
- The prohibition against expressions of bias and prejudice is revised to be more comprehensive, and judges are cautioned that discriminatory actions and expressions are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. The warning to avoid discriminatory jokes or other remarks is no longer limited to public settings, and the list of examples is expanded to include jokes or other remarks that demean individuals on the basis of their gender or ethnicity. These proposed revisions generally incorporate the changes made by the ABA in the 2007 Model Code.
- The fourth sentence is omitted because the appropriateness of law-related activities is the subject of Canon 4B. The Committee also was reluctant to endorse a sentence that seems to discourage judges from appropriate involvement in the community and believes that the reference to diligence added in the second sentence suffices to caution judges against neglect of judicial duties.
Canon 4B: Canon 4B is revised so that it clearly applies only to extrajudicial activities related to the law, the legal system, and the administration of justice. The Committee believes that this is consistent with the substance of the current Commentary to Canon 4B, and that there is no reason for Canon 4B to address a judge's non-legal activities since Canon 4A addresses extrajudicial activities in general.
Commentary to Canon 4B: The Commentary to Canon 4B is revised as follows:
- The existing paragraph of the Commentary is given the heading "General Considerations" to distinguish it from the new, second paragraph which addresses a judge's speaking to the public about the administration of justice;
- The last phrase of the first sentence in that paragraph is revised to include the word "civil." This addition emphasizes the breadth of the contributions judges are uniquely positioned to make to substantive and procedural law, the legal system, and the administration of justice;
- The third sentence is deleted in light of the Committee's recommendation that Canon 4B be limited to law-related activities;
- A proposed new third sentence reminds judges that, in all circumstances, they must avoid conduct that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. This sentence is based on Rule 3.1 of the ABA's 2007 Model Code which prohibits judges from participating in activities "that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality"; and
- The newly-proposed second paragraph of the Commentary, titled "Speaking to the Public about the Administration of Justice," seeks to encourage judges to speak to the public, including business and community groups, about issues relating to the administration of justice, while cautioning judges that they must avoid giving the impression that a group or its members are in a special position to influence the judge. The proposed Commentary also cautions judges that they must, where appropriate, avoid giving the impression that the judge favors the group's mission. The modifier "where appropriate" is intended to indicate that the mission of some civic or humanitarian groups may be sufficiently broad and non-controversial that a judge need not avoid giving the impression that the judge favors the group's mission.
The Committee welcomes all comments pertaining to the issues raised by the proposed amendments to Canons 4A and 4B. Comments should be directed to Attorney
The following documents are provided: 1) the text of how Canons 4A and 4B would appear with the proposed amendments; and 2) a redlined version of the proposed amendments to Canons 4A and 4B showing the additions and deletions to the current Massachusetts Code of Judicial Conduct.
Proposed Revised Canons 4A and 4B
Proposals Redlined Against Current MA Code Canons 4A and 4B