Opinion 08-195

October 23, 2008

Digest:         A town judge may play an existing digital recording for the town board that supports the need for security measures in his/her court. However, in responding to any questions about the recording, the judge may only discuss court procedures and security and must be careful not to make any comments about the case.

Rule:            22 NYCRR 30.1; 101.1; 100.2; 100.2(A);100.3(B)(8); Opinion 00-65 (Vol. XIX); Administrative Order AO/245/08; 1999 An Rep of NY Commn on Jud Conduct, at 117.

Opinion:

         A town justice states that the town board has questioned the need for increased security measures and security equipment in the municipal building that houses the judge’s court. The board members have already received copies of a recent Office of Court Administration security audit of the building, but would like the judge to make a presentation in support of the recommended security measures for his/her court.

         The judge asks the following questions:

1.May the court describe an incident and/or play a segment of an actual arraignment and/or other proceeding for the Board, sua sponte, especially if it involves a pending matter?

2.May the court answer questions concerning the digital recording, especially if it involves a pending matter?

3.If the court is allowed to describe a specific incident and/or include the recorded segment in its presentation, can I so speak to and/or play the recording during the public portion of the meeting? Can I speak to and/or play the recording during a closed executive session?

4.Since the court is equipped with video monitoring equipment, do the same rules apply to showing the incident from a video recording?

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). However, this does not prohibit judges from explaining the procedures of the court for public information (see id.).

         While noting that the Commission on Judicial Conduct advised that a judge should not “attempt to repeat or to summarize out of court what was said in the courtroom” and that “[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” (Opinion 00-65 [Vol. XIX] quoting 1999 An Rep of NY Commn on Jud Conduct, at 117, 120 - 121 citing 1985 An Rep of NY Commn on Jud Conduct, at 135, 137), the Committee concluded that a judge may briefly answer specific factual questions concerning the status of a pending case (see Opinion 00-65 [Vol. XIX]).

         Under the circumstances presented, the Committee concludes that the inquiring judge should not describe any incident that occurred in the judge’s court to the town board. The judge may, however, play a digital recording ¹ of an actual arraignment for the town board, either during the public portion of the town board meeting or during the town board’s closed executive session. In responding to any questions about the recording, the judge must limit his/her comments to the court’s procedures and security concerns and must refrain from commenting on the merits of the underlying case (see 22 NYCRR 100.3[8]; Opinion 00-65[Vol. XIX]).

         In the Committee’s view, the same ethical considerations apply to a digital audio recording and a video recording of the incident. However, the Committee does not opine about the legality of making any such video recording (see 22 NYCRR 101.1).

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           ¹Pursuant to the Rules of the Chief Judge, the chief administrator of the courts may require the mechanical recording of testimony and of other proceedings in cases in a town or village justice court (see 22 NYCRR 30.1). Pursuant to Administrative Order AO/245/08, dated May 21, 2008 and effective June 16, 2008, Chief Administrative Judge Ann Pfau ordered that each town and village court of the Unified Court System must mechanically record all proceedings that come before that court.