Opinion  CJE Opinion No. 2017-01

Date:	02/21/2017
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Public Outreach in Support of the Rule of Law and Judicial Independence

We have received an inquiry from a judge who wishes to speak to community groups under the auspices of a court-sponsored public outreach program(1). The judge asks: (1) whether judges may reassure the public, including groups composed of immigrants or religious minorities, that the courts of Massachusetts are and will remain committed to the rule of law, including the protection of the rights of all persons to due process, equal protection of the laws, equal access to the courts, and fair and respectful treatment; and (2) whether judges may respond to statements made by public officials and others that appear to reflect misconceptions about the role of an independent judiciary in our system of government or manifest disrespect for the rule of law. We begin with general observations before turning to the specific inquiries.

The importance of judicial independence is enshrined in the Massachusetts Constitution of 1780, the oldest written Constitution still in effect:  “It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” Part I, Article XXIX.   

In keeping with this constitutional imperative, the Massachusetts Code of Judicial Conduct recognizes the critical importance of judicial independence and stresses the judiciary's responsibility to preserve the rule of law.  The Preamble to the Code states: “An independent, fair, and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of persons of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law.” See Preamble [1].

• The Code repeatedly encourages judges to take steps to underscore the importance of these principles through appropriate judicial outreach.  Relevant guidance includes:
  Rule 1.2, Comment [4]:  “A judge is encouraged to participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”
• Rule 1.2, Comment [6]:  “A judge is encouraged to initiate and participate in appropriate community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code.”
• Rule 3.1, Comment [1]:  “To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice. . . . Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.”
• Rule 3.7, Comment [1B]:  “The Code explicitly encourages certain activities where the nature of a judge's participation will promote public understanding of and confidence in an independent judiciary, foster collegiality among the bar and communication and cooperation between the judiciary and the bar, enhance the judge’s ability to perform judicial or administrative duties, or otherwise further the goals of the courts.”
• Rule 4.1(B):  Rule 4.1 requires a judge to refrain from partisan and political activity; however, that Rule carefully distinguishes measures in support of the rule of law from prohibited activity. Paragraph (B) provides that a judge “may engage in activity in support or on behalf of measures to improve the law, the legal system, or the administration of justice, provided that the judge complies with the other provisions of this Code.”
  The Code also places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice. Judges must at all times adhere to appropriate standards of public conduct; they must maintain the dignity of judicial office and avoid acting in a manner that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.  See, e.g., Preamble [2], Rules 1.2, 3.1, and 3.7.  Judges must conduct their extrajudicial activities, including speaking engagements, in a manner that is not reasonably likely either to interfere with the proper performance of the judge's judicial duties or to lead to recurrent disqualification. See Rules 3.1 and 3.7.   In deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.  See Rule 3.7, Comments [1A] and [1B].  Judges must not make statements that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in the state or federal courts of Massachusetts.  See Rule 2.10.  An underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.

We answer the judge's questions as follows:

1. May judges engage in outreach activities, including speaking engagements, intended to assure or reassure the Commonwealth's residents and visitors that Massachusetts judges are committed to providing every person a fair hearing before independent and impartial judges dedicated to upholding the rule of law?

Answer:  Yes, subject to the parameters discussed above, judges may – and are encouraged to – engage in such outreach activities.  In so doing, judges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.   

2. In prepared or extemporaneous remarks, may judges respond to comments made by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law?

Answer: Yes, subject to the parameters discussed above, judges may respond to such comments.  It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge's remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests

(1) We note that the American Bar Association has declared March 5 – 11, 2017 National Judicial Outreach Week. The ABA hopes that a broad, coordinated effort by judges will “focus public attention on the rule of law and increase public trust and understanding of the role of the courts in upholding the rule of law.” See http://www.americanbar.org/groups/judicial/committees/judicial_outreach_network/judicial_outreach_week.html