1998-10: Propriety of a Judge Appearing on Television or Radio

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.  This Opinion does not consider or address whether the 2023 Code affects the analysis or conclusion of the Opinion.  A table cross-referencing the 1993 Code to the 2023 Code can be found at  IJEC CORRELATION TABLE.

IJEC Opinion No. 1998-10

April 8, 1998

TOPIC

Propriety of a judge appearing on television or radio.

DIGEST

Generally, a judge may appear on television or radio to discuss legal issues if the judge does not comment about proceedings which are pending or impending in any court. However, comments may be made about a pending proceeding if they are limited to: (1) explanations of administrative procedures of the court, (2) that which appeared in the official transcript of the proceeding, or (3) that which appeared in the court order or written opinion.

REFERENCES

Illinois Supreme Court Rules 62B and 63A(6) and Illinois Judicial Ethics Committee Opinion Nos. 94-5 and 96-5; Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993); In re Inquiry of Broadbelt, 683 A.2d 543 (N.J. 1996).

FACTS

It has been inquired as to what extent a judge may appear on television or radio to discuss legal issues. Judges are being asked to make such appearances with increasing frequency. The reasons for the appearances may be divided generally into two categories: (1) a discussion of a particular case or cases, and (2) a discussion of general legal matters and procedures.

QUESTION

May judges appear on television or radio to discuss legal issues?

DISCUSSION

As to a judge appearing on radio or television (or elsewhere in the media) to discuss some pending legal matter, whether it is pending in Illinois or elsewhere, there is a specific provision of the Illinois Code of Judicial Conduct, which addresses that. Rule 63A(6) states as follows:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to the judge=s direction and control. This paragraph does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

This Committee has addressed Rule 63A previously in its Opinion 96-5. In particular, that opinion discusses at some length the difficulty faced by a judge when he or she is asked to comment about a pending proceeding or to explain a ruling the judge has made, namely, the need to Awalk a fine line@ between comments which reach the Amerits of the case@ and comments which merely explain Aprocedure@ or repeat what is already a part of the public record. The Committee in its opinion stated that a judge ought not discuss the reasons for a ruling when asked, because of the risk of violating Rule 63A(6), and noted that even a judge who complied strictly with the limitations of the rule may appear to have violated the rule by a reporter=s account of the judge=s remarks.

Here, the question is a broader question in that it does not deal with a judge being asked to explain rulings made by that judge, but a judge being asked to comment generally on other cases and/or on legal issues. It is the opinion of the Committee that a judge is similarly restricted by Rule 63A(6), whether the case inquired about, or the decision inquired about, is pending before the judge or is pending elsewhere.

Although Rule 63A(6) has not been addressed in case law in terms of a judge appearing on television or radio in Illinois, the same rule has been upheld in that context elsewhere. In In re Inquiry of Broadbelt, the New Jersey Supreme Court discussed this precise rule in connection with a judge who had appeared over fifty times on ACourt T.V.@ and had provided guest commentary on the O.J. Simpson case on at least three occasions on CNBC. The judge apparently also appeared on AGeraldo Live@. The New Jersey Supreme Court held that the rule prohibited the judge from commenting on a case pending anywhere and stated that the second sentence of the rule did not allow such comment on the basis that the comments would be Aextrajudicial in nature.@

Although the Committee Commentary on Illinois Rule 63A(6) states that it was the view of the drafters that a judge Ashould not comment on a controversy not pending before the judge but which could come before the judge@, the rule itself refers to a matter proceeding Ain any court@. The Broadbelt decision points out that the phrase Aany court@ has been interpreted in other jurisdictions to refer to any court in any jurisdiction. In addition, because the purpose of the rule is obviously that of maintaining public confidence in the judicial system, it would appear that Aany court@ means just what it says.

The court in Broadbelt also found that the judge=s appearance on television were violative of New Jersey=s rule which is identical to Rule 62B of the Illinois Code, and specifically that portion which states as follows: AA judge should not lend the prestige of judicial office to advance the private interests of others.@

In our view, however, Rule 62B does not prohibit judges from regularly appearing on radio or television programs to discuss general issues about courts and court procedures, as long as it is not the judge=s intent to lend the prestige of his or her office to advance the private interests of others (including the television or radio station) but to better inform the public regarding the principles and procedures of our judicial system. (See also IJEC Opinion No. 94-5 and Buckley v. Illinois Judicial Inquiry Board)

CONCLUSION

The Committee believes that a judge who is asked to comment publicly on a pending matter, whether the matter is pending before that judge or anywhere else, should follow the directions of Opinion 96-5 and restrict any comments to either administrative procedures of the court or matters of public record, including reciting, without elaboration, any explanation of the judge=s ruling that already appears in the transcript of the proceedings or in the court=s order.

The Committee believes that judges may appear on radio or television, either on occasion or regularly, as long as they restrict their comments to general issues about courts and court proceedings and do not address the merits of individual cases, wherever pending.