Page 52

32164-rcm_2-2 Sheet No. 26 Side A

07/03/2012 13:52:34

Extrajudicial Speech

The Model Code, as its name implies, is an archetypical judicial code of conduct deVLJQHGWRUHĂ€HFWWKHEHVWFXUUHQWWKLQNLQJDERXWMXGLFLDOHWKLFV93 While the Model Code does not have the force of law, variations of it have been incorporated by all but one of the states in their codes of judicial conduct.94 It – and the Canons the proceeded it – has, from its inception, been the starting point for any national conversation about judicial ethics.95 The theory of extrajudicial silence was initially drawn from interpretations of earlier versions of the Model Canon and Model Code,96ZLWKVXEVHTXHQWUHÂżQHPHQWVSRLQWLQJWRD major shift in favor or extrajudicial speech.977KHUHÂżQHPHQWVFRQWDLQHGLQWKH0RGHO Code, largely the result of the changes in the media infrastructure, vindicated those who supported extrajudicial speech.

The Preamble The preamble to the 2007 Model Code in Section 1 is identical to its predecessor when LWDIÂżUPVWKDWDMXGJHVKRXOGÂłVWULYHWRPDLQWDLQDQGHQKDQFHFRQÂżGHQFHLQWKHOHJDO system.â€?98 It then enlarges on this responsibility, placing a new burden on the judiciary to preserve “the rule of law.â€?99

ReynoldsSpring.indb 195

07/03/2012 13:52:34

R EY NOLDS C OURTS & M EDIA L AW JOUR NAL

32164-rcm_2-2 Sheet No. 26 Side A

93. The American Bar Association’s Model Code of Judicial Conduct (Model Code) has its origins in 1924, ZKHQWKH$%$FUHDWHGWKHÂżUVWPRGHO&DQRQVRI-XGLFLDO(WKLFVZKLFKZDVWREHDÂłJXLGHDQGUHPLQGHU to the judiciary,â€? nothing more, http://www.americanbar.org/groups/professional_responsibility/resources/judicial_ethics_regulation.html. In 1972, a Code of Judicial Conduct was drafted to be something more: in effect, a roadmap to the states in order to police judicial conduct. Within 20 years, KRZHYHUWKHFRGHZDVVHHQWREHLQVXIÂżFLHQWZLWKUHJDUGWRWKHPRGHUQMXGLFLDOHQYLURQPHQW Therefore, in 1990, the ABA adopted a new Model Code, designed as a template, which allowed for TXLFNPRGLÂżFDWLRQLQDFKDQJLQJMXGLFLDOFOLPDWH,WKDVEHHQUHYLVHGWKUHHWLPHVVLQFH7KHODVWUHYLsion occurred in 2007, with the ABA expressing the hope “that the Revised [Model] Code will promote national uniformity and be adopted by the highest Court in each state.â€? Amer. Bar Ass’n, Statement of Commission Chair Mark I. Harrison (2007), http://www.americanbar.org/content/dam/aba/migrated/judicialethics/Chair_Message.pdf. 94. Cynthia Gray, 7KH$%$0RGHO&RGH7DNLQJ-XGLFLDO(WKLFV6WDQGDUGVWRWKH1H[W /HYHO, 90 JUDICATURE 284, 292 (May-June 2007). At the time, Montana was using the ABA’s 1924 Model Canons. ,G. The state later adopted a code based on the 2007 ABA Model Code. See In the Matter of the 2008 Montana Code Of Judicial Conduct, No. AF 08-0203 (Mont. Dec. 12, 2008), available at http:// supremecourtdocket.mt.gov/view/AF%2008-0203%20Other%20--%20Order?id={7F2426C5-4E874C48-AE15-3E8E997CF8FC}. 95. In spite of the linkage provided by the Model Code, each state’s code of judicial ethics is so different so that it is important to look at the ethical code for the state in which a judge serves before he or she contacts the media. 96. Fortunato, Jr., supra note 74, at 682-83. 97. These revisions can be found in the Canons and Rules themselves, as well as in supporting commentary and reporter’s explanation of changes, The reporter’s explanation of changes is a document which was drafted based upon the proceedings and record of the commission charged with drafting each version of Model Code, to explain to the ABA House of Delegates the basis for the changes. 98. ABA 2007 C ODE , supra note 75, Preamble [1]: “An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are WKHSUHFHSWVWKDWMXGJHVLQGLYLGXDOO\DQGFROOHFWLYHO\PXVWUHVSHFWDQGKRQRUWKHMXGLFLDORIÂżFHDVD SXEOLFWUXVWDQGVWULYHWRPDLQWDLQDQGHQKDQFHFRQÂżGHQFHLQWKHOHJDOV\VWHP´ 99. ,G.

195

7/3/12 7:57 AM

Profile for The National Judicial College

Reynolds Courts & Media Law Journal, Spring 2012  

This issue of the Journal covers Facebook service, Judgespeak and more.

Reynolds Courts & Media Law Journal, Spring 2012  

This issue of the Journal covers Facebook service, Judgespeak and more.

Profile for njcmag
Advertisement