Judicial Conduct · 2-8% of the exam
23.4.2Public statements on pending cases (CJC Rules 2.10, 2.6)
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- CJC Rules 2.10 and 2.6
Plain English
On a matter pending or impending in any court, not just the judge's own, no public statement that might reasonably be expected to affect the outcome or impair the fairness of the matter, and no nonpublic statement that might substantially interfere with a fair trial or hearing.
Paragraph (D) permits comment on any proceeding in which the judge is a litigant in a personal capacity — but not where the judge is a litigant in an official capacity, such as a writ of mandamus (cmt [2]). And a matter does not stop being pending when judgment issues: the CJC Terminology says it continues through any appellate process until final disposition.
Rule
CJC Rules 2.10 and 2.6
CJC Rule 2.10 (Statements on pending or impending matters):
- Pending: any matter that has already commenced; impending: imminent or expected in the near future.
- Prohibited: any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in ANY court — the judge's own docket is not the boundary; also any nonpublic statement that might substantially interfere with a fair trial or hearing.
- Permitted notwithstanding (A) — CJC 2.10(D): statements made in the course of official duties; explaining how the court's procedures work; and commenting on any proceeding in which the judge is a litigant in a personal capacity. Not where the judge is a litigant in an official capacity, such as a writ of mandamus — there the judge must not comment publicly (cmt [2]).
- Permitted subject to (A) — CJC 2.10(E): responding, directly or through someone else, to allegations in the media or elsewhere about the judge's own conduct in a matter — not a carve-out from (A), so the response still has to satisfy it.
- "Pending" outlasts the judgment. The CJC Terminology defines a pending matter as continuing "through any appellate process until final disposition." Once the matter is finally disposed of, the judge may comment on the reasoning.
- Pledges: a judge shall not make pledges, promises, or commitments inconsistent with impartial performance of adjudicative duties regarding cases likely to come before the court.
- Court staff: judge must require court staff to observe the same public-statement limitations.
CJC Rule 2.6 (Settlement-exposure disqualification): settlement discussions can expose the judge to off-record factual information; judge should consider disqualification when that information could influence trial decisions; consent to settlement participation is not consent to continued adjudication after off-record facts are received.
Example 1
Ex. 1
Judge Hana lectures at a law school on the reasoning behind five criminal procedure rulings her court issued last term, all fully decided and beyond appeal. A journalist then asks about a murder trial under way in a neighboring state, and Hana posts a view on the defendant's probable guilt to her personal social-media account. Put the lecture and the post on one timeline; only one is still open. The lecture is permissible — the five cases are finally disposed of, so CJC Rule 2.10(A) no longer reaches them. The post violates CJC Rule 2.10: the neighboring trial is pending, the prohibition applies in any court, not just hers, and neither the personal account nor geographic distance removes it.
Trap
Questions · 2
Q 01ch23-e08
Question 1 of 2 · Rule CJC 2.10
Judge presided over a jury trial in a wrongful-termination suit and entered judgment on the verdict. The losing party filed a notice of appeal the following week, and briefing in the appellate court is now under way. A month later Judge accepted an invitation to speak at a bar-association luncheon that was open to reporters. Judge walked the audience through the evidence, defended the rulings on the disputed jury instructions, and said that the appeal had no substance and was certain to fail. Judge is not a party to the case in any capacity. Is Judge subject to discipline?
Keys 1 to 4 choose.