Digest:  A judge is not prohibited from responding to factual inquiries from the media seeking information as to the status of a case before the judge, involving matters of record, but the judge may not comment on the case or attempt to repeat or summarize courtroom testimony.
 

Rule:  22 NYCRR 100.3(B)(8); Opinion 96-111 (Vol. XIV);
          Matter of McKeon, (N.Y. Comm. on Jud. Cond., August 6, 1998).
 
 

Opinion:

            As a result of a Commission on Judicial Conduct determination in Matter of McKeon (NY Comm. on Jud. Cond., August 6, 1998), a judge asks whether it is proper to respond to media inquiries, such as the following:
 

                    1. Is the Smith case on the calendar this morning?

                    2. What is the adjourned date for the Smith case?

                    3. Did Mr. Smith plead guilty this morning?

                    4. What was the sentence that Mr. Smith received?

                    5. How many witnesses testified in the Smith case today?

                    6. Is the Smith case going to the jury tomorrow?

                    7. Is the jury still deliberating in the Smith case?

                    8. What was the verdict in the Smith case?

            In Matter of McKeon, the Commission on Judicial Conduct censured the respondent judge for, inter alia, discussing with a newspaper reporter the issues in a case before the judge, and commenting on the quality of proof presented. Further, the Commission said that a judge should not "attempt to repeat or to summarize out of court what was said in the courtroom." In short, "(i)t is wrong for a judge to make any public comment, no matter how minor, to a newspaper reporter or to any one else, about a case pending before him" (emphasis in original; citing Matter of Fromer, 1985 Ann. Report of N.Y. Comm. on Jud. Conduct at 135, 137).

            Here, however, the questions posed do not call for public comment on a pending case. The questions are factual inquiries seeking information as to the status of the pending case. To respond, a judge need not report on or summarize a court proceeding, comment on the merits of the case or preview how the judge might rule, all of which the Commission determined to be improper. But the Commission did not determine it to be improper for a judge to answer specific factual questions concerning the status of a pending case.

            In Opinion 96-111 (Vol. XIV), the Committee advised that judges should not provide a copy of the weekly court calendar containing the names, addresses, dates of birth and sentences imposed, to the local newspaper. The Committee is similarly of the view that judges should not assist media representatives with copies of documents filed with the court or the judge. Rather, such assistance should be provided by non-judicial court personnel in accordance with governing statutes and rules. Indeed, the questions at issue here involve primarily facts that are matters of record, and could well be responded to by such personnel rather than the judge.