SJC Gives Judges More Leeway to Explain Themselves

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics.

The changes to Section 3B(9) of the Code of Judicial Conduct, which take effect Jan. 1, 2010,  also allow judges to make public comment about issues relating to the judge's conduct, as opposed to substantive legal rulings, and to discuss pending appellate cases in educational settings.

Official commentary to the revised rule says that "restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." A new appendix to the rule provides guidance for judges on when and under what circumstances they might issue explanatory memoranda.

"We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing," the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the appendix says, the judge should carefully consider four 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 his or her mind.
• The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.
• 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 and impartiality of judges.

In no case should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." Nor should a judge issue such a memorandum "if the court no longer has the authority to alter or amend the underlying order."

Following are the texts of the new and old rules:

New Section 3B(9) (effective Jan. 1, 2010):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending proceeding in any Massachusetts court, and shall require similar abstention on the part of court personnel.

(a) This section does not apply to any oral or written statement made by a judge in the course of his or her adjudicative duties.

(b) A judge is permitted to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(c) A judge is permitted to speak, write, or teach about cases and issues pending in appellate courts when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals and bar publications. This educational exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(d) A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge's impartiality and do not address the merits of any pending or impending judicial decision.

(e) This section does not apply to proceedings in which a judge is a litigant in a personal capacity.

Former Section 3B(9):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel.

(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(b) 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.

(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.