Supreme Judicial Court Rules  Rule 2.10 Judicial statements on pending and impending cases

(A)

A judge shall not make any statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any Massachusetts court.

(B)

A judge shall not, in connection with cases, controversies, or issues that are likely to come before any Massachusetts court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the duties of judicial office.

(C)

A judge shall require court personnel to refrain from making statements that the judge would be prohibited from making by Paragraphs (A) and (B).

(D)

Subject to the restrictions in Paragraphs (A) and (B), a judge may make statements that explain the procedures of the court, general legal principles, or what may be learned from the public record in a case. A judge may comment on any proceeding in which the judge is a litigant in a personal capacity.

(E)

Subject to the restrictions in Paragraphs (A) and (B), a judge may respond directly or through a third party to public criticisms of the judge’s behavior, but shall not respond to public criticisms of the substance of the judge’s rulings other than by statements consistent with Paragraph (D).

(F)

Subject to the restrictions in Paragraphs (A) and (B), a judge may speak, write, or teach about issues in pending or impending matters, but not matters pending or impending before that judge, when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals, and bar publications.

[1]

This Rule’s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary.

[2]

Paragraph (A) does not apply to any oral or written statement or decision by a judge in the course of adjudicative duties. A judge is encouraged to explain on the record at the time decisions are made the basis for those decisions or rulings, including decisions concerning bail and sentencing. By helping litigants to understand the basis for decisions in cases, the judge also promotes public understanding of judicial proceedings.

[3]

“[A]ny Massachusetts court” for purposes of this Rule means any state or federal court within the Commonwealth of Massachusetts.

[4]

The requirement that a judge abstain from statements regarding a pending or impending matter continues throughout the appellate process and until final disposition.

[5]

This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. However, even in such instances, a judge must act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

[6]

Paragraph (D) permits the dissemination of public information to educate and inform the public, while assuring the public that cases are tried only in the judicial forum devoted to that purpose. A judge may explain to the media or general public the procedures of the court and general legal principles such as the procedures and standards governing a “dangerousness hearing” under G. L. c. 276, § 58A, or restraining orders under G. L. c. 209A. A judge may also explain to the media or the general public what may be learned from the public record in a particular case. For example, a judge may respond to questions from a reporter about a judicial action that was taken and may correct an incorrect media report by referring to matters that may be learned from pleadings, documentary evidence, and proceedings held in open court. Paragraph (D) permits similar responsive comments or explanations by a judge acting in accordance with the judge’s administrative duties.

[7]

As used in Paragraph (E), “behavior” does not include the substance of a judge's rulings. For example, a judge may respond to criticism that the judge is disrespectful to litigants, but may not respond to criticism that the judge made an incorrect ruling other than by statements allowed by Paragraph (D).

[8]

The authorizations to comment in this Rule are permissive, not suggestive. A judge is not required to respond to statements in the media or elsewhere. Depending on the circumstances, the judge should consider the timing of any response and whether it may be preferable for a third party, rather than the judge, to respond.

[9]

When speaking, writing, or teaching about issues in cases or matters, a judge must take care that the judge’s comments do not impair public confidence in the independence, integrity, or impartiality of the judiciary.

[10]

When a judge orally renders a decision and intends to explain the judge's reasons in a written memorandum, the judge should simultaneously inform the parties that an explanatory memorandum will be forthcoming. When a judge has not indicated at the time the judge issues the underlying order that a written explanatory comment will be forthcoming and such a memorandum has not been requested by a party or by an appellate single justice or court, a judge has the discretion to issue an explanatory memorandum. The exercise of that discretion should be informed by the following guidance:

• (i) A judge should weigh, at a minimum, the following factors:
  • the importance of avoiding or alleviating the parties’ or the public’s misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision;
  • the amount of time that has elapsed since the order was issued and the extent to which the judge’s reasons for the decision remain fresh in the judge's mind;
  • the risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order; and
  • the danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence, integrity, and impartiality of judges.
• (ii) An explanatory memorandum is appropriate only if issued within a reasonable time of the underlying order and if the judge clearly recalls the judge’s reasons for the decision. An explanatory memorandum should not rely on any information that was not in the record before the judge at the time of the underlying order.
• (iii) A judge may not issue an explanatory memorandum if the court no longer has authority to alter or amend the underlying order. For example, a judge may not issue an explanatory memorandum when:
  • the underlying order is the subject of an interlocutory appeal, report, or other appellate proceeding that has already been docketed in the appellate court, unless such a memorandum has been requested by an appellate single justice or court;
  • the case has been finally adjudicated in the trial court, no timely-filed post-judgment motions are pending, and the time within which the court may modify its orders and judgments on its own initiative has passed; or
  • an appeal has been taken from a final order or judgment, and the appeal has been docketed in the appellate court.