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May 10, 2000
The Honorable Tom Glaze
Supreme Court of Arkansas
Justice Building
625 Marshall
Little Rock, AR 72201
Re: Advisory Opinion 2000-02
Dear Justice Glaze:
You have asked this committee for an interpretation of Canon
3(B)(9). In particular, you have inquired as to when and how a member
of the Arkansas Supreme Court may comment on a criminal case in
federal district court in Arkansas, when the media has widely reported
on testimony concerning the action or inaction of members of the
Supreme Court.
Canon 3(B)(9) states: "A judge shall not, while a proceeding
is pending or impending in any court, make any public comment that
might reasonably be expected to affect its outcome or impair its
fairness. . . ." The Official Commentary to the Canon further
states that "The requirement that judges abstain from public
comment regarding a pending or impending proceeding continues during
any appellate process and until final disposition."
Most of the reported advisory opinions and judicial decisions can
be easily distinguished. For example, they present issues of public
comments on cases actually pending before the judge; comments that are
particularly offensive in their language or tone; regular discussion
of cases on television shows; statements containing factual
misrepresentations. See Shaman, Lube, & Alphen (3rd edition 2000),
Section 10.34, pages 351-357. See also Cynthia Gray, When Judges Speak
Up (American Judicature Society) pages 8-15.
The question posed by you is admittedly more difficult. Although in
Arkansas, the case is not in the state courts and would not come to
the Supreme Court. You do not seek to comment on a television show or
in a question and answer session with a reporter, but in a written
press release, with a chronology and accompanying documents. You do
not seek to comment before the trial proceedings, but would wait until
the conclusion of the trial court proceedings.
The Honorable Tom Glaze, cont.
May 10, 2000
Page 2
However, in our opinion those differences do not permit a deviation
from the express language of the Code. A judicial statement concerning
events in dispute might be expected to affect the outcome or impair
the fairness of the proceeding, which is expressly prohibited by the
express language of the Code. Judicial comment on pending criminal
matters, no matter how presented, does not promote public confidence
in the impartiality of the judiciary. Canon 2(A).
Comments are not appropriate even after the trial court proceedings
are concluded. If appeals from convictions are pending, comment might
impair the fairness, or the perception of fairness, of the
proceedings. Further, even in the instance of a complete acquittal in
federal court, state charges on the same underlying facts are
possible. On the other hand, we are not concluding that comments must
be delayed until the statute of limitations bars any criminal action.
Prior to that, it may be certain (for instance, by the comments of
prosecutors) that the matter is closed.
We understand the frustration of judges when compelled to remain
silent when inaccurate and unfounded statements are made. We recognize
that our conclusion permits misstatements to be made, and implications
to be drawn and widely reported and accepted or believed by the
public, without any possibility of timely response or correction. Any
other citizen can stand up and say, "let me tell the people of
Arkansas my side of the story." But a judge is not any other
citizen. A judge must uphold the integrity of the judiciary, avoid all
appearance of impropriety, and expect to be the subject of constant
public scrutiny. As the commentary to Canon 2 states, "a judge
must therefore accept restrictions on the judge's conduct that might
be viewed as burdensome by the ordinary citizen and should do so
freely and willingly." Accordingly, in our opinion you are not
free at this time to make public comment in any fashion.
Sincerely,
Howard W. Brill
For the Committee
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