Judicial silence rooted in principles of fairness

Given the public importance of the decisions courts make, the public has the right to know what happens in our courtrooms. Openness is a key value of the legal system because it leads to public understanding of the role of courts and public respect for the rule of law. Most court proceedings are open to the public and are recorded and available for review. Most case files are also public records, and case information is available online for all 44 court locations statewide. The media regularly report on the courts and share their stories, photos and videos with the public. Oral arguments in the Supreme Court -- our state's highest court -- are filmed and broadcast on public television.

Yet a commitment to openness cannot undermine the overarching duty of courts, which is to provide a fair and impartial forum for the resolution of disputes. The fundamental goal is a level playing field, where both sides have equal opportunity to present their side of the story. Judicial decisions must be based on the law and facts of each individual case -- as presented in court -- not on outside influences that might tilt the field to favor one side or the other. Lady Justice wears a blindfold and holds a scale to symbolize the promise of equal treatment for everyone, without regard to personal beliefs or circumstances, political views or public pressure.

Alaska's Code of Judicial Conduct seeks to ensure fairness in our courts and includes several principles that bear on "judicial silence." First, judges must refrain from speaking about the substance of a pending case unless all parties to the case are present. Second, judges are barred from making public comments that might affect the outcome of a pending proceeding or impair its fairness. And third, judges must not deviate from the law -- even, in the words of the code, "to appease public clamor."

These principles do allow judges and court staff to provide basic information about court procedures, which happens regularly. And judges often explain their rulings in the courtroom or in their written decisions and orders. But in almost all circumstances, after-the-fact public statements by judges or court staff to explain the rationale for a specific court decision would be inappropriate and even unethical. The court record is open and must speak for itself.

When parties believe court decisions have been made in error, well-established procedures allow them to seek review. The various agencies, attorneys and advocates who work in the courts regularly use these procedures to obtain modifications of prior court rulings. The open court process, where all parties can be heard on the record, provides the forum that is most fair to all concerned.

At times of public controversy, courts must respond differently than other public institutions. While members of the other branches of government might grant interviews, issue press releases or hold press conferences to explain their positions, members of the judiciary must refrain from such conduct. They do so not to hide information or evade public accountability but to protect the neutrality of the court, maintain the integrity of the legal process and uphold the ethical standards by which they are bound. Being quiet doesn't mean that courts don't care about public concerns. Being quiet means that courts take seriously the unique role they serve and the importance of preserving everyone's right to fair and impartial justice.

Barbara Hood is communications counsel for the Alaska Court System.