RULE 2.10: Judicial Statements on Pending and Impending Cases

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1 AMERICAN BAR ASSOCIATION CPR POLICY IMPLEMENTATION COMMITTEE COMPARISON OF ABA MODEL CODE OF JUDICIAL CONDUCT AND STATE VARIATIONS RULE 2.10: Judicial Statements on Pending and Impending Cases (A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (C) A judge shall require court staff, court officials, and others subject to the judge s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B). (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity. (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge s conduct in a matter. COMMENT [1] This Rule s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary. [2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly. [3] Depending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge s conduct in a matter. Eleven (11) states have identical language (AR, IN, IA, MN, MT, NE, NV, OK, RI, UT, and WY) Nineteen (19) states have similar language (AZ, CA, CO, CT, DC, HI, KS, KY, ME, MD, MO, NH, NM, ND, OH, PA, SD, TN, and WA) One (1) state has different language (DE) AL AK AZ 9/1/2009 AR [2]: replaces official with administrative and such as a writ of mandamus with the judge may comment publicly on the merits of the case. In cases in which the judge is a litigant in a nominal capacity, such as a special action 1

2 7/1/2009 CA 1/1/2013 2nd half of Canon 2A. Adopts of substantially the same language. Canon 3B(9). Changes the term court personnel to staff and court personnel to include court reporters and bailiffs not employed by the court. In addition, deletes the phrase for public information from the exception following the deletion by ABA. Commentary to Canon 3B(9), 1st paragraph. Adds a sentence that reinforces the concept that judges may make public comments only if the case is not pending or impending. Commentary to Canon 3B(9), 2nd paragraph. Adds a sentence clarifying the conduct permissible under the rule. Commentary to Canon 3B(9), 3d paragraph. The canon does not prohibit a judge from responding to allegations concerning the judge s conduct in a proceeding that is not pending or impending in any court. CO 7/1/2010 CT 1/1/2011 DE 11/1/2008 Commentary to Canon 3B(9), 4th paragraph. Adds language to the commentary to caution judges about making nonpublic comments on pending or impending cases. (D): Adds: subject to Canon 1 after personal capacity Deletes Comment [3] (C) Adds to beginning: A judge may consult with other judges or court staff, court officials, and others subject to the judge s direction and control whose function is to aid the judge in carrying out the judge s adjudicative responsibilities; Adds However to beginning of MC paragraph (C); Does not have MC (E); Does not have Comment [3]. (A) A judge should abstain from public comment on the merits of a pending or impending proceeding in any court, and should require similar abstention on the part of personnel subject to the judge's direction and control. Comment: The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Rule 1.2. "Court personnel" does not include the lawyers in a proceeding before a judge. The conduct of lawyers is governed by the Rules of Professional Responsibility. (B) This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education. Comment: This provision does not restrict comments about proceedings in which the judge is a litigant in a personal capacity, but in mandamus proceedings when the judge is a litigant in an official capacity, the judge should not comment beyond the record. (C) A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except as authorized by a court rule or administrative directive which has been either 2

3 DC 1/1/12 FL HI 1/1/2009 ID 7/1/2016 IL IN 1/1/2009 IA 5/3/2010 KS 3/1/2009 KY 1/31/2018 MD 7/1/2010 promulgated or approved by the Delaware Supreme Court. Comment: Temperate conduct of judicial proceedings is essential to the fair administration of justice. The recording and reproduction of a proceeding should not distort or dramatize the proceeding. Deletes (D) and (E) (E) Adds at the end: A judge shall not discuss the rationale for a decision in a pending case unless the judge is relating what was already made part of the public record. [2]: Deletes all text after in a personal capacity in the first sentence. [3]: Adds first sentence: A judge may respond to criticism by reiterating without elaboration what is set forth in the public record in a case, including pleadings, documentary evidence, and the transcript of proceedings held in open court. (E): adds A judge shall not discuss the rationale for a decision unless the judge is relating what was already made part of the public record to end [3]: adds A judge may respond to criticism by reiterating without elaboration what is set forth in the public record in a case, including pleadings, documentary evidence, and the transcript of proceedings held in open court to beginning (E): Adds to end: Subject to the requirements of paragraph (A), a judge may respond personally or through the Administrative Office of the Courts to allegations concerning the judge s conduct in a matter by explaining the law, procedural rules, administration of justice or applicability of the Idaho Code of Judicial Conduct. [3]: A judge may comment on legal terms, statutory language, procedural rules and legal concepts if any allegation is made concerning the judge s official conduct. The judge would be well advised to issue any such comments through the Administrative Office of the Courts. Judges are cautioned, however, there should never be comments on the results of a case consistent with Rule 2.10(A) Deletes (E) and [3]. Comment: [1]: Adds to end: Paragraphs (A) and (B) make clear that the prohibition applying to judges and judicial candidates in Rule 4.1(A)(12) and (13) applies to sitting judges at all times, and the Commentary to Rule 4.1(A)(12) and (13) is applicable to this Rule as well. [2]: Deletes or represents a client as permitted by these Rules. (A): Replaces not make any with abstain; replaces statement with comment ; inserts that relates to a proceeding pending or impending in any court between public statement and that might reasonably ; replaces wording after fairness with of that proceeding and shall require 3

4 MA 1/1/2016 similar abstention on the part of court personnel subject to the judges direction and control. This Rule does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court to end. (B): Deletes A judge shall not, in connection with cases at beginning of sentence, replaces with With respect to a case, controversy, or issue ; inserts a judge shall not make a commitment, pledge, or promise between court and that and replaces is for are before inconsistent ; judicial office now referred to as the office Deletes MR (C); (C): Similar to MR (D) but adds reference to paragraph (b); replaces personal with nonjudicial Deletes MR (E) Deletes MR [3], Replaces with new comment: "Court personnel," as used in paragraph (a) of this Rule does not include the lawyers in a proceeding before the judge. The comment of lawyers in this regard is governed by Rule 3.6 of the Maryland Lawyers' Rules of Professional Conduct. (A): Deletes public before statement ; deletes or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (C): Replaces court staff, court officials and others with court personnel. (D): Adds and B after Paragraph A ; Deletes public before statement ; Adds general legal principles, or what may be learned from the public record in a case after court. (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 17 education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals, and bar publications. Adds [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. Adds [3]: "[A]ny Massachusetts court" for purposes of this Rule means any state or federal court within the Commonwealth of Massachusetts Adds [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]: Similar to MR [2] 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.* Adds [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 4

5 ME 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. Adds [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]: Similar to MR [3]: 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. Adds [9]: 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. Adds [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 18 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. Deletes Model Code (B) (B): Model Code (C) deletes reference to paragraphs (A) and (B) 5

6 9/1/2015 (C): Model Code (D) deletes reference to paragraph (A); deletes and may comment on any proceeding in which the judge is a litigant in a personal capacity. and moves to (D) (D): Model Code (D) (E): Model Code (E) Adds (F) This rule is not violated by any statement a judge may make in the course of managing or deciding matters pending before the judge or in the course of fulfilling the judge s administrative responsibilities, provided that such statements are relevant to judicial proceedings or administrative matters within the judge s authority. MI MN 7/1/2009 MO 1/1/2012 MS MT 1/1/2009 NE 1/1/2011 NV 1/19/2010 NH 4/1/2011 NJ NM 1/1/2012 NY NC ND 7/1/2012 (B) Adds at the end: unless the judge recuses under Rule (A)(4) [1] Replaces This Rule s restrictions on judicial speech with The restrictions on judicial speech by this Rule [2] Deleted MO [2] is the same as MC [3] Renumbered as 2.11 [2] Deletes or represents a client as permitted by these Rules. [1] Adds to end: The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process until final disposition. [2] Deletes second part of the first sentence after in a personal capacity; Changes the last sentence to: The judge must not comment publicly on cases in which the judge is a litigant in an official capacity, such as a writ of mandamus. [3] Deletes depending upon circumstances in the beginning. Changes Cases in rule title to Matters (D) Deletes make public statements and may and replaces proceeding with matter (E) Replaces language after a judge may with make public statements in the course of performing the duties of judicial office, may explain court procedures, and may respond directly or through a third party to allegations in the media or elsewhere concerning the judge s conduct in a matter. 6

7 OH 3/1/2009 OK 4/15/2011 OR 12/1/2013 PA 7/1/2014 RI 1/31/2018 SD 1/1/2006 TN 7/1/12 TX UT 4/1/2010 VT VA WA 1/1/2011 WV 12/1/2015 WI WY 7/1/2009 (D): adds nonjudicial after personal [2]: adds nonjudicial after personal and replaces official with judicial OK [2] and [3] are equivalent to MC [3] and [2], respectively No equivalent rule in OR Code. [1]: Adds to end: A judge should be mindful that comments of a judge regarding matters that are pending or impending in any court can sometimes affect the outcome or impair the fairness of proceedings in a matter. See Rule 1.2 Adds [4]: This Rule is not intended to impede a judge from commenting upon legal issues or matters for pedagogical purposes. Model Code Rules 2.10 (A), (C), and (D) correspond to SD Canon 3B (9). Similar, but the Model Code expands the list of persons who may be required to refrain from making statements. Model Code Rule 2.10(B) corresponds to SD Canon 3B (10). Same as Model Code. SD Code does not include language re: Model Code Rule 2.10(E). [2] Adds: or represents a client as permitted in these rules after personal capacity (A) State Code changes might reasonably with would reasonably, change might substantially with would reasonably be expected to ; Adds: [4] A judge should use caution in discussing the rationale for a decision and limit such discussion to what is already public record or controlling law. 7

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