Your request for advice indicates that you presided over the disposition of a criminal complaint that charged a defendant with making threats to commit a crime. You subsequently received a letter from the complaining witness in the case stating that he had heard nothing about the progress of the case and was concerned that it was not being treated seriously by those involved in the criminal justice system. The letter contained details of the offense and indicated that the writer had sent a copy of his letter to a Justice of the Supreme Judicial Court and to the Chief Justice of the court on which you sit.
You would like to respond to the complaining witness's letter, and you have provided the committee with a draft version of the letter that you propose to send. In its entirety, your proposed letter states as follows:
"I have received your letter of November 7, 2003. The Code of Judicial Conduct does not permit me to engage in private conversations or communications about a case. Consequently, I cannot respond to the particulars in your letter.
"I can inform you that the case was handled in the first session of the . . . Court and that the proceedings were recorded. The case was presented to me for disposition and the information upon which I based my decision is fully contained within that record."
You also propose sending copies of your response to the Supreme Judicial Court Justice who received the initial letter, to the Chief Justice of your court, and to a probation officer who, presumably, is responsible for the defendant's case.
You have asked whether you may send the proposed letter, and whether the committee's opinion would be any different if you were to furnish the District Attorney's office and defense counsel with copies.
The relevant provisions of the current Code of Judicial Conduct -- Sections 3 B (7) and 3 B (9) -- like the relevant provisions of the Code's predecessor -- Canons 3 (A) (4) and 3 (A) (6) -- contain express prohibitions on ex parte communications and public commentary only with respect to "pending" or "impending" cases. The committee has taken no position regarding the extent, if any, to which those prohibitions apply to cases that no longer are "pending" or "impending." See generally C. Gray, Commenting on Pending Cases, at 16-17 (American Judicature Society 2001). Given the broad provisions of Mass. R. Crim. P. 30 (a) and 30 (b), however, it may be that few criminal cases should be treated, at least for Code purposes, as if they are completely closed. See CJE Opinion 2002-13 (nn. 1 and 4). Accordingly, the committee treats your request as if it involves a "pending" case.
With that in mind, two Code provisions are of particular relevance. Section 3 B (7) (a) provides in relevant part and subject to exceptions not applicable here, that "[a] judge shall not initiate, permit, or consider any ex parte communication concerning a pending or impending proceeding, except that: (a) [w]here circumstances require, an ex parte communication is authorized when it does not deal with substantive matters and is for scheduling or administrative purposes . . . ."
Section 3 B (9) (a) states in relevant part that "[a] judge is permitted to make public statements . . . to explain for public information . . . what may be learned from the public record in a case."
Further, the commentary to Section 3 B (9) states in relevant part that:
"[a] judge may, consistent with this section, explain what may be learned from the public record in a case, including pleadings, documentary evidence, and the tape recording or stenographic record of proceedings held in open court. The judge may not discuss the rationale for a decision, however, unless the judge is repeating what was already made part of the public record.
Your modest and straightforward response to the letter from the complaining witness is, the committee believes, fully consonant with those portions of the Code. The letter you received seems to require, at the very least, a response telling the writer where he may learn what has happened to the case resulting from his complaint. Your letter does nothing more than that, and, thus, to the extent that it is an "ex parte communication" at all, it is an ex parte communication that Section 3 B (7) (a) authorizes. Moreover, the content of your letter is the kind of "public comment" authorized by Section 3 B (9) (a).
The committee also believes, however, that you should send a copy of your letter to the assistant district attorney who was responsible for prosecuting the case and to defense counsel, and that you should enclose a copy of the letter that you received from the complaining witness. Although the committee believes that your letter is perfectly proper, it is conceivable that the letter from the complaining witness contains information that was not before you at the time of the disposition, which, conceivably, could warrant your disqualification from further proceedings in this case. See Sections 2 A and 3 E of the Code, and Commonwealth v. Gogan, 389 Mass. 255, 259-260 (1983). Providing the prosecutor and defense counsel with a copy of the complaining witness's letter will allow them to formulate judgments on that score, and, should the case be resurrected before you, make any arguments on the subject of disqualification that they deem appropriate.