Related Duties in Rule 2.10

Related Duties in Rule 2.10

Rule 2.10(A) reaches statements about matters that are pending or impending, and it tests them by their likely effect on the proceeding.¹ Two ways of compromising impartiality slip past that paragraph. A judge can announce, long before any case is filed, how the court will decide a type of dispute. A judge can also stay silent personally and let someone else say what the judge may not. Paragraphs (B) and (C) close those gaps, and each has its own trigger:

• Paragraph (A) requires a pending or impending matter. Within that boundary, it asks whether a public statement might reasonably be expected to affect the outcome or impair the fairness of the matter, or whether a nonpublic statement might substantially interfere with a fair trial or hearing.²
• Paragraph (B) requires no filed case. It reaches cases, controversies, or issues likely to come before the court, and it forbids pledges, promises, or commitments inconsistent with impartial performance.³
• Paragraph (C) turns on the speaker. It reaches court staff, court officials, and others subject to the judge's direction and control, and it measures their statements by what the judge would be prohibited from saying under paragraphs (A) and (B).⁴

Because the triggers are independent, exam stems can exploit them. A stem reporting that no case is pending removes paragraph (A) from the analysis and leaves paragraph (B) fully in play. A stem reporting that the judge personally said nothing leaves paragraph (C) open for whatever the staff said. Pledges come first, then the judge's responsibility for the people who work for the court.

Pledges and Commitments

Rule 2.10(B) forbids a judge, in connection with cases, controversies, or issues likely to come before the court, to make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.⁵ Three parts of that sentence do the work. The subject matter is what the judge can expect to decide in the future, so no filed case is needed. The conduct is a pledge, a promise, or a commitment, which are three words for one act: binding oneself in advance to a course of decision. The limit is inconsistency with impartial performance, so the question is whether the promise leaves the judge unable to decide the matter with an open mind.

Paragraph (B) differs from paragraph (A) in what it condemns as well as in when it applies. Paragraph (A) targets remarks that threaten the outcome or fairness of a particular proceeding.⁶ Paragraph (B) targets the commitment to a result itself. A judge can therefore violate (B) without saying a word about any litigant.

The promise itself is the violation, because a judge who has pledged an outcome for a whole category of cases has settled the question before hearing from anyone it will affect. Every litigant who later brings such a case must argue against a decision already made. Requiring a pending matter would let these promises be made freely until the day a case was filed, and by then the commitment would already have done its work.

Paragraph (B) must still leave room for candidates to tell voters something. In 2002 the Supreme Court ruled that judicial candidates have a First Amendment right to announce their views on issues likely to come before their courts.⁷ A view tells voters how the candidate thinks about a legal question and leaves the candidate free to be persuaded by the law and facts of the case that actually arrives. A promise about how cases will be decided is a commitment, and paragraph (B) forbids it. The exam error runs in both directions: treating every campaign statement on a legal issue as a violation, and treating the candidate label as a shield for a promise of results.

The two answers share a subject and a setting, so the only fact that moved the result is whether the statement fixes an outcome. Neither result turned on whether a case was pending, because paragraph (B) never asks.

A pledge can cost the judge a case later. Under Rule 2.11(A)(5), a judge is subject to disqualification after a public statement, made as a judge or as a judicial candidate, that "commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy."⁸ That provision arose in response to concerns over campaign promises, but by its terms it is not limited to campaign-related commitments. The second candidate above, once seated, faces two consequences. His forum remark violated paragraph (B) when he made it, and when a tenant later raises a rent-withholding defense in his courtroom, the earlier statement can require him to step aside.

Staff and Court Personnel

Rule 2.10(C) extends the judge's duty past the judge's own voice. A judge shall require court staff, court officials, and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).¹⁰ The sentence assigns the duty to the judge, names the people it reaches, says what the judge must do about them, and supplies the measure of a forbidden statement: whatever the judge could not say under the first two paragraphs. The effect standards for public and nonpublic statements, and the ban on pledges, therefore operate a second time through the people who work for the judge.¹¹

The rule exists because a statement from chambers carries the judge's apparent authority. A reporter who hears a bailiff, a clerk, or an aide talk about a case has little reason to separate that person's words from the judge's own, and the parties and prospective jurors draw the same conclusion about where the judge leans. If paragraph (A) bound only the judge's personal voice, a judge could stay silent and let an aide say the same thing, with the same effect on the proceeding and none of the discipline. The verb closes that route. The judge must require abstention, an affirmative obligation to instruct, supervise, and correct, and a judge who knows what staff are telling the press and lets it continue has not met it.

The reach of the duty follows the judge's power to direct. The covered group is court staff, court officials, and others subject to the judge's direction and control, a phrase that takes in people such as law clerks, secretaries, and bailiffs. A journalist, a litigant's friend, or an employee of a law firm in the case is outside paragraph (C), because the rule asks the judge to require only what the judge has authority to require.

The breach lies in the judge's inaction, so her own silence with reporters is no defense. The assistant's remark triggers the analysis because it is a statement the judge would be prohibited from making, and paragraph (A) measures a public comment on a pending matter by its predicted effect on that matter, whoever delivers it.¹² A judge who forbids the practice and enforces the instruction has done what paragraph (C) asks. A judge who tolerates it has let chambers speak in a way she could not.

Because the yardstick is what the judge herself could not say, paragraphs (A) and (B) carry through to the staff together with their limits. The same two effect standards apply, so a staff remark to the press is tested against the public-statement standard and a private remark that might substantially interfere with a fair trial is tested against the nonpublic one. The pending-or-impending requirement carries through too, so a clerk's comment about a case closed years ago is outside the duty. The pledge prohibition travels as well: a court official who tells a civic club that the judge will deny every suppression motion in drug cases has made a statement the judge could not make under paragraph (B). In the other direction, a clerk who explains to a member of the public how to file a motion says nothing the judge could not say, because a judge may explain court procedures, and so the staff duty is not breached.¹³

Exam stems often invite the answer that a staff member's remark is the staff member's problem. The stem reports that a court officer talked to the press and that the judge never said a word to anyone, and the tempting conclusion is that the judge is untouched. The sound analysis first asks whether the judge would be prohibited from making the same statement. If so, and the speaker is under the judge's direction and control, the next question is whether the judge required staff to refrain, and a judge who knew of the practice and allowed it has not.