Opinion No. 96-5
March 6, 1996
TOPIC: A judge's response to news media inquiries regarding a pending case.
DIGEST: A judge may not speak to a reporter about a ruling in a pending case without violating Supreme Court Rule 63A(6) unless the judge's comments are limited to either (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 Rule 63A(6) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Committee Comments to Supreme Court Rule 63A(6); ABA Model Code of Judicial Conduct Canon 3A(6) (1972); National Conference of State Trial Judges Committee on News Reporting with Fair Trial, Judicial Guidelines for Dealing with News Media Inquiries and Criticism (6th Draft, June 5, 1984); Matter of Sheffield, 465 So.2d 350 (Ala. 1984); Office of Disciplinary Counsel v. Souers, 66 Ohio 3d 199, 611 N.E.2d 305 (1993); Ryan v. Commission on Judicial Performance, 45 Cal. 3d 518, 754 P.2d 724 (1988); In re Schenck, 318 Or. 402, 870 P.2d 185 (1994); Matter of Hey, 188 W. Va 545, 425 S.E.2d 221 (1992); State Commission of Judicial Qualification v. Rome, 229 Kan. 195, 623 P.2d 1307 (1981); Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982); West Virginia v. McGraw, 171 W. Va. 441, 299 S.E.2d 872 (1983); Illinois Rule of Professional Conduct 3.6.
FACTS
A judge reduced the child support payments of an unemployed parent who was a defendant in a child support proceeding. Later, the judge required the defendant to report to the court on his efforts to find employment. Eventually, the judge concluded that the defendant was not making an earnest job search, and increased the defendant's reporting requirements. When a newspaper reporter called the judge for an explanation, the judge said that the judicial ethics rules precluded comment on a pending case. The newspaper then published a story stating that the defendant could not find employment because he spent too much time reporting to the court on his job search efforts.
QUESTION
To what extent, if any, could the judge have spoken to the reporter about the judge's decision to increase the defendant's reporting requirements without violating the Code of Judicial Conduct?
OPINION
This inquiry is governed by Supreme Court Rule 63A(6), which states:
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.
Under Rule 63A(6), a "judge should abstain from public comment about a pending or impending proceeding of the court." However, not all public comments by the judiciary about a pending case are ethical violations. Rule 63A(6) specifically states that it "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." The Committee Comments to Rule 63A(6) further explain that any comment on a pending case should be limited to matters of public record.
Although no reported decisions in Illinois have applied Rule 63A(6) to an inquiry such as this, Illinois, like many other states, has adopted Canon 3A(6) of the 1972 version of the ABA Model Code of Judicial Conduct without substantive change. Despite the limitations that Canon 3A(6) places on a judge's public comments on pending cases, the State Trial Judges' Committee on News Reporting and Fair Trial, a committee of the American Bar Association, has opined that:
Judges should encourage representatives of the news media to inquire of them for background information relating to the operation of the court system. While judges may not comment on the merits of a pending case, a judge may and should explain legal terms, concepts, procedures, and the issue involved in the case so as to permit the news representatives to cover the case more intelligently . . . often there is no one, other than the judge, who is in a position to give a detailed and impartial explanation of the case to the news media.
National Conference of State Trial Judges Committee on News Reporting and Fair Trial, Judicial Guidelines for Dealing with News Media Inquiries and Criticism (6th Draft, June 5, 1984), cited in Matter of Sheffield, 465 So. 2d 350, 355 (Ala. 1984).
This Committee believes that encouragement of communications with the press concerning cases is likely to place judges in an awkward position. As the Supreme Court of Alabama has observed, "on the one hand, a judge is strictly prohibited from public comment on the merits of a pending case . . . yet, on the other hand, a judge is encouraged to explain a pending case in abstract terms. Obviously, judges walk a fine line between the duties and prohibitions of Canon 3A(6)." Matter of Sheffield, supra, 465 So.2d at 355.
Problems caused by this fine line are exemplified by the difficulty in distinguishing between a comment about court procedures which is permitted under Canon 3A(6), and a comment about the merits which the Canon prohibits. For example, in Matter of Sheffield, a judge who was queried by the press about a contempt proceeding was found to have commented upon the merits of a case even though his intent was only to explain certain procedural details. The Supreme Court of Alabama held that the judge violated Canon 3A(6) by discussing with a newspaper editor a proceeding for constructive contempt that was pending in the judge's court. The contempt proceeding was against a woman whose factually inaccurate letter criticizing an unnamed judge had been published in a local newspaper. In addition to explaining the meaning of contempt, the judge stated that "the contempt speaks for itself.... I think its pretty obvious who she is talking about. Everybody in Abbeville knows what she is talking about. Just because she doesn't name any names doesn't lessen what's been done." 465 So.2d at 352. Thus, in effect, the judge was explaining why he thought the woman was in contempt. As a result of these comments, the court held that the judge was not commenting on court procedures, but rather on the merits of the case, and thus had violated Canon 3A(6).
In contrast, other courts have held that a judge's comments explaining the reasoning for a decision is a comment on the court's procedures rather than a comment on the merits of the case. For example, in Office of Disciplinary Counsel v. Souers, 66 Ohio 3d 199, 611 N.E.2d 305, 306 (1993), the Supreme Court of Ohio held that a trial court judge who, in statements to the media, justified a sentencing order that had subsequently been overturned, did not violate Canon 3A(6). Although the judge's statements had been injudicious, including his expressed wish that the Court of Appeals get to the "merits of the case" and his description of the Court of Appeal's ruling as "ludicrous," the Court held that he was entitled to explain his procedures in the underlying case. Id. Thus, it appears that the Ohio court in Souers defined "procedure" more broadly than the Alabama court did in Sheffield.
The Committee believes the decisions in Sheffield and Souers present two distinct, if not irreconcilable, views of judicial ethics. In each case the judge sought to explain an action that he had taken in court with extrajudicial statements that were not a matter of public record. The Committee would follow the reasoning of the Alabama court in Sheffield and conclude that such extrajudicial statements are improper. The Souers court's interpretation of the rule permits judges to make public statements concerning the reason for their rulings in a pending case. The rationale of this holding is that the explanation of the ruling is permitted as an explanation of the court's procedures. We disagree. Those statements by the judge may or may not be supported by the record of the proceedings and are clearly not procedural. The interpretation of Rule 63A(6) in Souers could lead to questions concerning the judge's impartiality and thereby jeopardize the pending case. On the other hand, applying the Sheffield court's interpretation of Rule 63A(6), the judge's comments about the context of the ruling on the merits would be limited to only that which appeared in the record of the proceedings or in the written court order or opinion. By following Sheffield, the Committee believes that comments of a judge that relate to a pending case, and that fall outside the record of the proceedings, ought to be considered improper comments on the merits and not "legal procedures involved in the case."
Applying the logic of Sheffield to the present inquiry, the Committee believes that the judge was correct in determining that the rule precluded comment about the decision to increase the defendant's reporting requirements. Commenting on the decision would have undermined the impartiality and integrity of the judge's ruling.
The Committee believes that, in addition to being precluded from commenting about rulings in a pending case, judges who publicly criticize an attorney in a pending case are likely to violate Canon 3A(6). For example, in In re Schenck, 318 Or. 402, 427, 870 P.2d 185,201 (1994), the Oregon Supreme Court held that a judge violated Canon 3A(6) for writing a newspaper column that was harshly critical of the District Attorney's performance in a case. Although the judge's statements also explained certain court procedures, the judge's criticism of the attorney raised doubts concerning the judge's impartiality and thus violated Canon 3A(6). Id.
Finally, the Committee believes that judges may be found in violation of Canon 3A(6) for making a public statement evidencing bias in connection with a pending case. For example, in Papa v. New Haven Federation of Teachers, 186 Conn. 725, 726, 444 A.2d 196, 198 (1982), plaintiffs moved for an order to show cause why a teachers' union and certain individual teachers should not be held in contempt of court for violating an injunction restraining the teachers from going on strike. Id., 444 A.2d at 207. During the pendency of the case, a newspaper interview with the trial judge showed that the judge possessed a strong bias against the teachers. Id. at 207-08. The Supreme Court of Connecticut held that the judge had violated Canon 3A(6) because the interview raised a question about the judge's ability to remain fair and impartial through the remainder of the proceeding. Id. at 208.
However, the Committee believes that a judge is not automatically prohibited from expressing his or her personal opinion on a general legal issue relating to a case which is, or may later come, before the judge. For example, in West Virginia v. McGraw, 171 W. Va. 441, 299 S.E.2d 872 (1983), the West Virginia Supreme Court held that a judge's statements regarding the judiciary's independent budget-making power which were made in advance of a mandamus action regarding the issue did not violate Canon 3A(6). The court distinguished the violation found in Papa because the judge's statements in McGraw, unlike those in Papa, did not raise a reasonable question as to the judge's impartiality. Id. at 874.
CONCLUSION
The Committee believes that the judge in this inquiry could not have spoken to the reporter about the pending case without violating Supreme Court Rule 63A(6) unless the judge's comments were limited to either administrative procedures of the court or matters of public record, including reciting, without elaboration, any explanation of the judge's ruling that appeared in the transcript of the proceedings or in the court's order.
The Committee believes that a judge who discusses reasons for a ruling runs the risk of violating Rule 63A(6) by inadvertently providing information that is not a part of the public record. Even if a judge complies with the limitations of Rule 63A(6), a reporter's account of the judge's remarks could give rise to an erroneous appearance that the judge violated the rule.
Under these circumstances, the Committee recommends that a judge faced with an inquiry from a reporter about a ruling in a pending case respond as follows:
1. A preferable alternative to responding "no comment" may be to explain the ethical constraints on a judge's ability to discuss pending cases and to direct the reporter to the location and language of Rule 63A(6). If the reporter continues to question the extent of the ethical constraints on the judge's ability to comment, consideration should be given to providing the reporter with a copy of this opinion.
2. The judge may inform the reporter of the procedure for obtaining a transcript of the proceedings.
3. The judge should consider suggesting that the reporter contact the lawyers involved in the proceeding since lawyers are generally freer than judges to discuss pending cases with reporters. (But see Rule of Professional Conduct 3.6.) It would be permissible for the judge to provide the reporter with the lawyers' names and telephone numbers.
