RESOLUTION ENDORSING THE PROPOSED MISSION STATEMENT OF THE
SPECIAL COMMITTEE TO RESPOND TO ATTACKS ON THE JUDICIARY
WHEREAS, an independent judiciary is one of the foundations of American government;
, the American Bar Association has identified the current problem of unfair or unwarranted criticism of judges, noting that, Judicial independence makes a system of impartial justice possible by enabling judges to protect and enforce the rights of the people, and by allowing them without fear of reprisal to strike down actions of the legislative and executive branches of government which run afoul of the Constitution;
, while judicial independence is an essential component of the federal system of government where judges are appointed for life, it is even more crucial in states, like Pennsylvania, where judges are required periodically to receive voter approval in order to continue judicial service;
, the American Bar Association has adopted model policies to help state and local bars develop their own procedures for responding, in appropriate situations, to unfair criticism aimed at judges;
, the Philadelphia Bar Association concurs that judicial independence is a vital part of our justice system and that the organized bar has a role to play by responding, when appropriate, to unfair attacks on judges or judicial actions in a principled manner;
, the Chancellor has convened a Special Committee to Respond to Attacks on the Judiciary, which has reviewed the American Bar Association’s model policies with an eye toward adapting those policies for use by our Association and its leadership;
, the Special Committee has prepared a Statement of Purpose, identifying the scope of the committee’s mandate as follows:
I. The primary purposes and functions of the program are:
(a) To identify and, if appropriate, address errors in reporting and inaccurate or unjust criticism of judges, courts and/or the administration of justice, as further provided in this policy statement;
(b) To serve, along with the Association’s Bar-News Media Committee, as a resource for obtaining and disseminating information concerning judicial activities, court process, or other technical or legal information about the administration of justice; and,
(c ) To serve as a resource for the Chancellor on matters relative to the mission of the Committee.
II. Guidelines to Determine When the Bar Should Respond
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 "nitpicking;"
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 to be "nitpicking;"
(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;
(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, 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 overall the criticism is not justified or fair;
(j) Whether the criticism, while not appearing in the local press, pertains to a local judge or a local matter;
(k) Whether the timing of the response is especially important and can be best met by the Committee.
III. 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 dispute 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) When there is a likelihood that a complaint against the judge will be presented to the appropriate judicial inquiry or disciplinary body;
(e) When a lengthy investigation to develop the truth is necessary;
(f) When the response would prejudice a matter at issue in a pending proceeding;
(g) When the controversy is insignificant.
NOW, THEREFORE, BE IT RESOLVED that the Board of Governors endorses the work of the Special Committee and adopts the Statement of Purpose for the guidance of current and future Association leaders in determining whether and how to respond to perceived attacks on the judiciary.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: April 30, 1998