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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.




Howard W. Brill

For the Committee






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