A recent judicial ethics opinion from Virginia advised that a judge may not write an article analyzing a particular criminal law statute, asserting that the state supreme court has incorrectly interpreted that statute, and providing an alternative interpretation, even if the judge includes disclaimers stating that the article does not express an opinion on any case that may come before the judge and complies with the code of judicial conduct.  Virginia Advisory Opinion 2020-2.  The opinion was approved by the Virginia Supreme Court pursuant to a rule requiring that the Judicial Ethics Advisory Committee “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”

The inquiring judge proposed writing an article to be submitted to bar association publications.  The committee assumed that the judge would write the article “in a scholarly and respectful manner, with a tone that would not otherwise undermine public confidence in the integrity and impartiality of the judicial system” and without discussing cases that are not pending or impending before any court.  The committee advised that, if the article only analyzed the statute and the Court’s interpretation, its content “would likely be within the bounds” of the code of judicial conduct and “a permissible educational or scholarship exercise concerning the law, the legal system, and the administration of justice.”

The problem, the committee stated, was that the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation,” that is, “to criticize a superior court’s decision in a public forum (as opposed to authoring a judicial opinion in the context of an active case being decided by the judge).”  The committee explained that readers of the judge’s alternative interpretation would likely infer that the author would rule according to the alternative interpretation if the issue were presented to them as a judge.  Although it acknowledged that “impartiality does not mean that judges have no prior opinions about legal issues that come before them,” the committee concluded that, “in terms of that natural tension between having developed opinions about certain areas or issues of law and being open-minded, the proposed content of the article appears to be the type of pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  “This,” the committee concluded, “is not permitted by the Canons.”

The committee also concluded that the disclaimers proposed by the judge were “not enough to render the proposed article permissible under the Canons.”  It explained:

The committee noted that it does not have the authority to address First Amendment issues.

Despite any disclaimer, should the issue arise in a case before the judge, litigants would be on notice of how the judge is predisposed to deciding the case, and would have to tailor their arguments accordingly.  More likely, a litigant with facts or arguments that conflict with the judge’s interpretation would request the judge’s recusal . . . , since the judge’s impartiality might reasonably be questioned.  Depending on the number of cases that arise involving that statute, continual recusals could potentially impact the workload in that judicial district.

1 committee member dissented from the opinion, arguing that “scholarly works on legal topics should be encouraged among judges – especially when an appellate court may have misapplied a rule of construction or applied faulty logic.  If, to borrow from Hans Christian Andersen’s folk tale, the emperor has no clothes, it’s up to the members of his court to respectfully point that out.”

The dissent noted that the inquiring judge did not plan to write “an article advocating nullification of a law . . . , or casting aspersions on the competence or integrity of members of the judiciary . . . , or suggesting a need for rebellion and defiance against the appellate court’s ruling . . . .”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “we should not add to the Judicial Canons the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’ . . .  Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.”  The dissent explained:

A judge who takes the time and effort to offer constructive comment about interpretation of a statute is demonstrating respect for the law.  Moreover, suggesting an alternate analysis to be applied by the Supreme Court is not the same as suggesting that the article’s author or anyone else should disregard the effect of precedent.  Publishing constructive criticism does not mean that a judge is going to disregard his or her duty to adhere to decisions of higher courts.  Moreover, a judiciary that bars constructive comment about the law implies that appellate courts are closed minded, not open to discussion and unfairly biased toward their own predisposition.

. . . The legal system would be greatly weakened by a rule foreclosing a judge’s suggestion that rules of construction support a different interpretation of an existing statute.  Such limitation on open dialogue would compromise the opportunity to achieve greater competence and thereby undermine faith in the law.