Opinion  CJE Opinion No. 2002-14

Date: 10/23/2002
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Attending Conference Where Case Pending on Appeal Will be Discussed

In your letter of September 12, 2002, you requested an opinion from the Committee on Judicial Ethics concerning your attendance at an upcoming educational conference. The educational conference will focus, at least in material part, on issues related to interactions between judges and members of the media while trials are in progress. Judges and members of the media will appear together on a series of panels designed to explore issues of mutual interest, including issues that involve the media's desire to report fully on criminal trials and to photograph and televise trial participants while a trial is in progress.

Recently, you were the trial judge in a criminal trial that is now on appeal following your denial of a posttrial motion for a new trial. During the empanelment of the jury in that case, several issues arose, one of which resurfaced in the new trial motion. At present, no motions in connection with the case are pending before you. (1) You anticipate empaneling a jury in a related case in the near future, and also anticipate that some of the empanelment issues you encountered in the previous case may recur.

With that as background, you have asked four related questions: (1) may you attend the educational components of the conference; (2) may you attend the particular segment of the conference relating to empanelment, the part of the trial that gave rise to several issues in the case tried before you and may give rise to similar issues in the upcoming case; (3) may you attend segments of the program where the case tried before you is discussed; and (4) if the answer to all three of the previous questions if "yes," may you participate in a discussion of empanelment and courtroom closure issues?

The starting point for analysis of your questions is Canon 3 (A) (6) which, insofar as relevant here, states:

"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."

As the language reveals, Canon 3 (A) (6)'s prohibition is broad. (2) That language prohibits "public" comment about any case pending in any court, anywhere. (3) See In re Broadbelt, 146 N.J. 501, 683 A.2d 543 (1996) (holding that a judge violated the Canon by appearing as a television commentator regarding highly publicized cases in other jurisdictions). Moreover, the prohibition is not limited to commentary on the merits of the case. See In re Best, 719 So.2d 432, 433, 435 (La. 1998). Finally, advisory committees in other jurisdictions have uniformly held that cases on appeal are "pending" within the meaning of the Canon and, for example, that while a case is on appeal a judge cannot appear as a panelist in a symposium designed to discuss an opinion the judge had authored. New Jersey Advisory Opinions 3-88 and 2-88. See also Broadman v. Comm'n on Judicial Performance, 959 P.2d 715, 724-727 (Cal. 1998); Florida Advisory Opinion 98-28. See generally C. Gray, Commenting on Pending Cases, at 11-12 (American Judicature Society 2001).

The case tried before you, which is now on appeal, is "pending" in another court of the Commonwealth. The heavy media presence at, and participation in, the upcoming educational conference means that any comments you make as a participant in discussions while media members are present would be "public" comments within the meaning of the Code. Consequently, Canon 3 (A) (6) prohibits you from discussing at the conference the specific case tried before you or the orders you issued during its course.

Canon 3 (A) (6) does not prohibit you from "explaining for public information the procedures of the court." Read in context, however, the quoted exception to Canon 3 (A) (6)'s broad reach is confined to general procedures that are not specific to a particular case. By way of example, the Tennessee Advisory Committee opined that, while a case is on appeal, the trial judge may make public comment on (1) the rules and procedures regulating in-court media coverage of trial proceedings, (2) the procedures a trial judge is required to follow when sitting without a jury, and (3) the general proposition that the personal opinions of the judge on the moral, ethical, theological, and political views of society should have no part in the court's decision in a particular case. Tennessee Advisory Opinion 89-13. Likewise, the Georgia Advisory Committee has ruled that a judge may discuss the general court procedures in a way that does not relate trial strategies to a particular decision in a specific case. Georgia Advisory Opinion 60. Advisory committees elsewhere have also ruled, however, that when judges begin to relate general procedures to specific rulings, they cross the line into prohibited commentary on a pending case. In the Matter of Sheffield, 465 So.2d 350, 355 (Ala. 1985); Order of Public Censure (Hampton) (Texas State Commission on Judicial Conduct, November 27, 1989); Texas Advisory Opinion 191 (1996); Illinois Advisory Opinions 96-5 and 98-10. See generally C. Gray, supra at 6-8.

Given the language of the quoted exception and the context in which the language appears, the committee is of the opinion that you may discuss general principles, theories, practices, or procedures that affect your handling of high profile cases in general, but you may not make reference to, explain, or discuss any of the orders you issued in the specific case that is currently on appeal or relate those general theories or practices to any orders you entered in that case. Hewing to the line dividing the permissible from the impermissible may be difficult. See generally In the Matter of Sheffield, supra. Nevertheless, if you are able to do so, the Code permits your participation in general discussions.

One other problem is raised by the questions you posed. Canon 3 (A) (4) prohibits ex parte communications "designed to influence . . . judicial action." Canon 3 (C) (1) requires a judge to disqualify herself or himself "in a proceeding in which his impartiality might reasonably be questioned, including . . . instances where: (a) [the judge] has . . . personal knowledge of disputed evidentiary facts concerning the proceeding."

Even if you personally do not participate in discussing your orders, the conditions that produced those orders, the orders' impact, or the specific proceedings now on appeal, there is a danger that others on a panel or members of the audience will discuss those subjects and, in the process, will convey to you facts that were not part of the record of the case or that pertain specifically to the related upcoming case. See generally CJE Opinion 2001-7. Receipt of such facts would potentially compromise your ability to hear future motions in the case that was tried before you, or to hear the upcoming case. That risk is an inevitable concomitant of your participation in a discussion where some of the discussion's logical components are off-limits to you.

The committee believes that the risk of your acquiring facts in an inappropriate fashion can be reduced, among other ways, by a general announcement that no one attending the session may discuss the specifics of your case or any ruling you made in that case, that no one may discuss the related upcoming case or anticipated issues in that case, and that all discussion of issues must proceed either in general terms or through exploration of cases in which judgments have entered and appellate proceedings have run their course. (4)

Returning, in conclusion, to the specific questions you posed, the committee is of the opinion that (1) you may attend the conference; (2) you may attend the particular segment of the conference relating to empanelment; (3) you may attend segments of the program where the case you tried is discussed, but you may not participate in the discussion; and (4) you may participate in a discussion of empanelment and courtroom closure issues, provided that the discussion is general and does not focus on the case you tried or the case you intend to try. All four affirmative answers, however, are qualified by your need to exercise extreme caution, and perhaps enlist the aid of conference organizers, to ensure that the discussion will not lead to your acquisition of facts that will impair your ability to rule on future motions in the tried case or to conduct the upcoming trial.

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(1) As you no doubt are aware, however, Mass. R. Crim. P. 30 (a) and 30 (b) permit motions to be filed at almost any time. Consequently, the fact that no motion currently is before you does not mean that such a motion will not be filed in the future.

(2) Concerned about the Canon's breadth, some States have restricted it by narrowing the prohibition with the following language from the Model Code of Judicial Conduct (1990): "[A] judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness." Massachusetts has not taken that path. The State of Maine, perhaps among others, has specifically rejected the narrowing language, stating in its Code commentary that "the difficulty of assessing the impact of public comment on an unknown audience justifies the absolute bar."

(3) Currently pending before the Supreme Judicial Court is a proposal to amend the Code of Judicial Conduct. That proposal would replace Canon 3 (A) (6) with Canon 3 B (9). In material part, proposed Canon 3 B (9) repeats the prohibition now found in Canon 3 (A) (6), but follows that prohibition with several exceptions, one of which is as follows:

"(b) Other than cases in which the judge has personally participated or reasonably can expect to participate, this Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case."

While the committee answers your question on the basis of the Code's present text, we note that the proposed amendment, if adopted, would not lead to a different answer to the first question you have posed.

(4) As noted earlier, see n.1, supra, Mass. R. Crim. P. 30 contains no specific time limits for filing new trial motions. In a sense, therefore, almost every modern case has some potential for resurrection. That potential may caution against discussing any such case, no matter how dormant. The committee believes, however, that such a degree of caution would be excessive and that its exercise would stifle useful and helpful discussion in an effort to avoid infinitesimal risks.

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