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Mass. Eases Rules on Public Comment by Judges

The public distrusts the courts. Don't just take my word for it. That was the conclusion of a major conference a decade ago convened by the American Bar Association, the National Center for State Courts, and others. A key contributor to this distrust, the conference concluded, is media misunderstanding of the courts. Media understanding and public understanding go hand-in-hand.

The media's misunderstanding of the courts, in turn, is fueled by the lack of communication between judges and journalists. Judges fear journalists and journalists fear judges. As retired Massachusetts Superior Court Judge Hiller Zobel once said about judges' fear of speaking to reporters, "The attitude of some judges is like that of [former Ohio State football] coach Woody Hayes, who said about the forward pass that three things can happen, and two of them are bad."

If Zobel is right, then one of those bad things is that a judge who speaks to a journalist may end up overstepping an ethical boundary that limits the ability of judges to comment on cases publicly. Cognizant of this concern, the Massachusetts Supreme Judicial Court appointed an ad hoc committee two years ago to study whether the state should ease its limits on judicial speech. After that committee recommended a loosening of the rule to give judges more leeway to explain themselves through supplemental opinions, the SJC took the recommendations under advisement.

Last week, the SJC concluded its deliberations and announced that it had approved a new judicial conduct rule 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 the committee, 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." The revised rule adds a new appendix that 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 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, said the SJC, should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." While not all that the ad hoc committee hoped for, the new rule is at least a small step toward closing the information gap between the public and the courts.

Posted by Robert J. Ambrogi on December 14, 2009 at 11:24 AM | Permalink | Comments (0)


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