2012-23 (Emergency Staff Opinion issued July 19, 2012)
Extrajudicial Activities; Public Statements; Off the Bench Conduct
Rules 1.2, 2.10, 3.1 & 4.1
 
Issue: May a Judicial Official appear as a guest on a monthly "live call-in" radio show sponsored by a hospital to discuss the recent U.S. Supreme Court Affordable Care Act (“ACA”) decision and its implications?
 
Additional Facts: The focus of the particular show will be on the Supreme Court's decision... "largely asking the question, okay-- what's next?" The radio station’s invitation describes the radio show as a forum for healthy debate, a unique way to link national experts and policy makers with the community. The goal is to shine a light on the real issues our country faces: access to health care, quality of care and the cost of care. The JO indicated that other speakers, including an individual from an issue advocacy organization, may be invited to appear on the program.
 
Applicable Rules: Rule 1.2 requires that judges must act at all times in a manner that promotes public confidence in the impartiality of the judiciary and must avoid impropriety and the appearance of impropriety.

Rule 2.10 prohibits judges from making any public statement “that might reasonably be expected to affect the outcome or to impair the fairness of a matter pending or impending in any court or make any non-public statement that might substantially interfere with a fair trial or hearing.”
 
Rule 3.1 sets forth general limitations on extrajudicial activities.

Rule 4.1 concerns political activities and states that judges shall not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court. The rule also prohibits judges from engaging in any other political activity except on behalf of measures to improve the law, the legal system or the administration of justice.  
 
Emergency Staff Opinion: After consulting with several members of the Committee, staff counsel advised the Judicial Official that he/she should not participate in the “live call-in” radio talk show because of the prospect that the Judicial Official could be asked about or enmeshed in a discussion about the merits of the decision or about political consequences related to the case.