Pending or Impending Matters

Pending or Impending Matters

Rule 2.10(A) does not reach every case a judge might hold an opinion about. It covers a matter "pending* or impending* in any court," and those words set two limits, one in time and one in place.¹ The asterisks flag terms defined in the Model Code's Terminology section. A pending matter has begun and has not reached final disposition, and it stays pending through any appeal. An impending matter has not yet begun but is expected to begin imminently. Once a matter fits either label, the effect standards take over: a public statement violates the rule if it might reasonably be expected to affect the outcome or impair the fairness of the matter, and a nonpublic statement violates it if it might substantially interfere with a fair trial or hearing.²

The timing line falls where it does because a proceeding can be affected only while it is still alive. While a matter is pending, a judge's public comment can still shape how parties, witnesses, jurors, or an appellate court approach it. The rule reaches impending matters for the same reason, from the other direction. A judge who announces a view about a prosecution everyone expects to see charged has prejudged it before the first document is filed, and a rule limited to pending matters would let that judge speak freely until the clerk stamped the complaint. Once a matter is completely finished, no jury is waiting and no appeal is open, so no outcome remains to be affected.

What separates these two scenes is the status of the proceeding when the judge speaks. The judge's tone and the subject's notoriety play no part. A fact pattern that says "no case has been filed" does not take a judge outside the rule, because the question is whether a filing is imminent, and a publicly announced investigation with charges expected within days answers it. A concluded case is the opposite pole. Even when a matter is pending or impending, the analysis is not over, because that status makes paragraph (A) applicable without establishing a violation. The effect standard must still be met.

Students most often go wrong on the place limit. A judge who hears "pending" tends to assume "pending before me," and that assumption produces the wrong answer. The rule says "in any court," and it does not confine itself to the judge's own court or court system. Judges have been disciplined for appearing on television programs to comment on cases pending in other courts.³ The rule's own test explains why. It asks what a statement might do to the outcome or fairness of the matter, and a public remark can do that wherever the matter sits. A juror or witness in another court's case can watch the same broadcast.

Fact patterns often pile on distance facts, such as a different state, a federal court, or a case with no tie to the judge's docket, because those facts tempt a "no violation" answer. None of them bears on scope. Ask whether the matter is pending or impending somewhere, then move to the effect standard for the kind of statement made.