September 4, 1996
Whether a judge may make public comment
regarding a pending or impending matter
before the court
Re: Committee on Standards Governing Judges
Your inquiry dated July 3, 1996
You inquire whether he (sic) may speak to the ACLU concerning a case in which you had a recalcitrant witness arrested. Canon 3B(9), Code of Judicial Conduct, provides that a judge shall not, while a proceeding is "pending or impending in any court." make any public comment that might reasonably be expected to effect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing. By its terms this section does not prohibit judges from making public statements in the course of official duties or from explaining for public information the procedures of the court. The comment indicates that the requirement that judges abstain form public comment continues "during any appellate process and until final disposition."
In Opinion 85-9, a judge inquired whether it would be proper to meet with a newly formed citizens group call (sic) "Advocates for Victimized Children" when that group was formed because of a sentence imposed by the judge in a case that was still pending at the time of the proposed meeting. The committee stated that the judge should declined (sic) to meet with the citizens group and that any communications with that group be tested in non-specific terms so that (the judge's) personal views on disposition of sexual battery cases not be conveyed.
You have quite clearly stated in your letter that you believe a motion
for post-conviction relief in impending. The Committee, with one member
abstaining, believes unanimously that your are prohibited by Section 3B(9)
from having a general discussion with the ACLU or any other group concerning
the case. You are not, however, prohibited from explaining the procedures
of the court which most likely include the procedures by which a witness
who refuses to obey a subpoena may be detained.
The committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Very truly yours.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Office of the State Courts Administrator
(name of judge deleted from this copy)
Participating Members: Judges Cardonne, Green, C. Kahn, L. Kahn, Rushing, Silverman, Smith, Tolton and Attorney Novicki