Idaho State Bar

PROGRAM FOR THE APPROPRIATE RESPONSE TO CRITICISM OF JUDGES AND COURTS

1. POLICY STATEMENT (Approved by ISB membership 11/00)

A. WHY A PLAN IS NEEDED

The effectiveness of the administration of justice depends in a large measure on public confidence. The reporting of inaccurate or unjust criticism of judges, courts, or our system of justice by the news media erodes public confidence and weakens the administration of justice. It is vital that nonlitigants as well as litigants believe that the courts, their procedures and decisions are fair and impartial.

It generally is undesirable for a judge to respond to criticism of her or his own actions by appearing in the news media. This policy has been developed to insure the dignity of the administration of justice, to prevent interference with pending litigation, and to reaffirm the commitment to an independent judiciary dedicated to making decisions based on facts and law as presented in court. These considerations underlie the ethical restrictions relating to a judges ability to engage in public comment. These ethical restrictions often prevent a judge from responding to criticism, even when the criticism is misinformed or unjust,

B. WHEN ACTION IN RESPONSE TO CRITICISM SHOULD BE TAKEN BY THE BAR

Implementation of this plan is selective. It in no way infringes on the freedom of the press. This plan is designed to effect a response to criticism that is serious as well as inaccurate or unjustified. There will be no attempt to prevent criticism, but inaccurate or unjust criticism may be answered through an organized public information program.

The bar may respond publicly to attacks upon a judge only in the following two instances:

  1. A public utterance that is unwarranted or an unjust attack on a judge in relation to specific cases, regardless of the source of the attack, or,
  2. Any "unwarranted" or "unjust" attack or series of attacks on a judge or court which may adversely affect the administration of justice.

POLICY IMPLEMENTATION

A. REFERRAL AND INVESTIGATION PROCEDURES

  1. All referrals of criticism of judges and courts should be forwarded to the executive director of the Idaho State Bar. The referral may be oral or written, but in all cases the referring person must be available to assist in gathering background and factual information and must present written material when requested. All referrals should be undertaken with the specific permission of the judge or court criticized with the understanding that the judge or court also will assist in gathering necessary information for the bar association to evaluate.
  2. The executive director will at once begin to gather all pertinent background and factual information including a copy of the text (whether in broadcast or print media) of the criticism.
  3. The executive director will quickly notify the Idaho State Bar commissioners of the criticism complained of and the relevant background and facts known.
  4. The commissioners will promptly investigate the underlying facts, discussing them to the extent possible with the Source of the criticism and with the judge involved. If a response is appropriate, it will be quickly prepared and released in such a way as to be effective.

B. GUIDELINES TO DETERMINE WHEN THE BAR SHOULD RESPOND

  1. 1. The following are the kinds of cases in which responding to criticism is appropriate, except in unusual circumstances:
    • (a) When the criticism is serious and will most likely have more than a passing or de minimis negative effect in the community;
    • (b) When the criticism displays a lack of understanding of the legal system or the role of the judge and is based at least partially on such misunderstanding; and
    • (c) When the criticism is materially inaccurate the inaccuracy should be a substantial part of the criticism so that the response does not appear to be "nit-picking."
  2. The following factors should be considered in determining whether a response should be made in a close case and considered in every case in determining the type of response:
    • (a) Whether a response would serve a public information purpose and not appear "nit- picking."
    • (b) Whether the criticism adequately will be met by a response from some other appropriate source;
    • (c) Whether the criticism substantially and negatively affects the judiciary or other parts of the legal system, or whether continuing discussion of the controversy would serve to lower public perceptions as to the dignity of the court, the judiciary or the judicial system;
    • (d) Whether the criticism is directed at a particular judge but unjustly reflects on the judiciary generally, the court, or another element of the judicial system (e.g., grand jury, lawyers, probation, bail, etc.);
    • (e) Whether a response provides the opportunity to inform the public about an important aspect of the administration of justice (e.g., sentencing, bail, evidence rules, due process, fundamental rights, etc.);
    • (f) Whether a response would appear defensive or self-serving;
    • (g) Whether the critic is so obviously uninformed about the judicial system that a response can be made on a factual basis
    • (h) Whether the criticism or report, although generally accurate, does not contain all or enough of the facts of the event or procedure reported to be fair to the judge or matter being criticized;
    • (i) Whether the overall criticism is not justified or fair
    • (j) Whether the criticism, while not appearing in the local press, pertains to a local judge or local matter;
    • (k) Whether the timing of the response is especially important and can be best met by the committee.
  3. The following are the kinds of cases in which response to criticism IS NOT appropriate, except in unusual circumstances:
    • (a) When the criticism is a fair comment or opinion
    • (b) When the feud is between the critic and the judge on a personal level;
    • (c) When the criticism is vague or the product of innuendo, except when the innuendo is clear
    • (d) Where criticism raises issues of judicial ethics appropriate for presentation to the Judicial Inquiry or Disciplinary body;
    • (e) When a lengthy investigation to develop the true facts is necessary;
    • (f) When the response would prejudice a matter at issue in a pending proceeding;
    • (g) When the controversy is insignificant;
    • (h) When the criticism arises during a political campaign and the bar's response may be construed as an endorsement of a particular candidate for judicial office

C. THE RESPONSE

  1. To be effective, the response must be prompt, but accurate. If at all possible, the response should be made within 4 to 5 days of publication of the criticism or report, especially keeping in mind the deadliness) of the news media that reported the original criticism. Ideally a response can be more immediate and occur even before publication, for example, through direct communication with a reporter or editor which may clarify the facts and serve to defuse the situation.
  2. The form and manner of the response should be such that it will receive the same exposure and notoriety as the criticism. A letter to the editor is an effective form of response, because it is the most likely to be printed fully and accurately. Press releases are usually more subject to editing and are frequently viewed as less credible, and pamphlets are too elaborate. Television or radio talk shows may be effective forms of response but should be used more cautiously and sparingly. In some circumstances, press conferences provide effective means to disseminate a response. Direct communication with reporters and editors intended to clarify facts and present another position is encouraged.
  3. The following drafting considerations should be included in a response:
    • (a) The response should be a concise, accurate, "to the point" statement, devoid of emotional, inflammatory or subjective language
    • (b) The statement should be informative and not argumentative or condescending;
    • (c) The statement should include a correction of the inaccuracies, citing facts and relevant authorities where appropriate;
    • (d) The statement should be written in lay terms suitable for inclusion in a newspaper story;
    • (e) Where appropriate, the statement should include the point that the judge had no control or discretion (e.g., decision required by state law)
    • (f) Where appropriate, the statement should include an explanation of the process involved (e.g., sentencing, bail, temporary restraining order, etc.);
    • (g) The statement should not attempt to discredit the critic, that is, attack the competence, good faith, motives or associates of the critic,
    • (h) The statement should not provide evidence that the critic has hit a nerve, causing overreactions
    • (i) The statement should not defend the indefensible;
    • (j) The committee should consider the cause of the criticism or controversy, which might not be immediately apparent
  4. The following points may be included in a typical response:
    • (a) Identify the criticism and its source.
    • (b) We may frequently disagree with the decisions and actions of public officials, including judges. The federal and state constitutions protect our right to express that disagreement.
    • (c) We must remember that judges have no control over what cases come before them, but they must decide each and all of those cases. Judges must follow the law as established by higher courts. One side always loses in every lawsuit.
    • (d) Because of their position, judges are not wholly free to defend themselves and it is ordinarily not appropriate for them to personally answer charges made against them or their decisions.
      (e) Lawyers, under the Code of Professional Responsibility and the Model Rules of Professional Conduct, have a duty to defend judges against unjust criticism.
      (f) Avoid taking a position on the merits of the controversy, since to do so will probably eliminate any educational benefit the = balance of the points might have for those who agree with the criticism.
    • (g) The need for independent judges, who will not be influenced by criticism of them or their decisions, requires that the organized bar remind both lawyers and the public of these facts. The law has established appellate courts so that decisions of judges may be reviewed and, if appropriate, corrected. Our present judicial system provides for change in the law through legislative action or by constitutional revision.