Opinion 10-153

October 28, 2010

Digest:         A judge may write a column for a bar association’s newsletter on evidentiary issues connected with the county’s “red light” automatic camera program, but under the circumstances presented, the judge is limited to an objective description of motions and decisions in previously decided cases.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinion 10-79; Joint Opinion 09-192/09-231; Opinions 09-70; 09-62; 07-37; 04-115; 04-110; 03-141; 03-65; 01-53 (Vol. XX); 01-03 (Vol. XIX); 00-79 (Vol. XIX); Joint Opinion 98-126/98-129 (Vol. XVII); Opinions 95-94 (Vol. XIII); 95-48 (Vol. XIII); 99-113 (Vol. XVIII).

Opinion:

         A judge who writes an evidence column for a bar association’s newsletter asks whether he/she may write a column on the “interesting evidentiary issues” that arise from the local county’s “red light” program, in which automated cameras take pictures of cars going through red lights. According to the judge, there have been two applications to have the program declared unconstitutional in the court where the judge sits. The judges states that both applications were heard and denied by his/her co-judges, and no appeal has been filed “as of now.”

A judge must always avoid impropriety and the appearance of impropriety (see NYCRR 100.2) and must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Thus, a judge may engage in extra-judicial activities that are not incompatible with judicial office and that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge also may not publicly comment on a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]). Subject to these and other limitations, a judge may engage in avocational activities such as speaking, writing, lecturing, or teaching (see 22 NYCRR 100.4[B]).

The Committee has previously concluded that judges may write and publish books, articles, manuals, columns and commentaries about the law (see Joint Opinion 09-192/09-231 [citing prior opinions]). In doing so, however, the judge may not indicate a predisposition to decide issues in a particular way or make comments that cast reasonable doubt on the judge’s capacity to decide issues impartially (see 22 NYCRR 100.4[A][1]; Opinions 07-37; 03-141). Therefore, a judge must take care “to avoid the perception that he/she is providing advice on litigation strategy or tactics” (see Opinions 09-62 [seminar for a law enforcement agency]; 07-37 [chapter in book on prosecutorial ethics]). A judge must also avoid commenting on matters of substantial public controversy which may detract from the dignity of judicial office, interfere with the performance of judicial duties, or undermine public confidence in the judge’s ability to remain impartial (see 22 NYCRR 100.4[A][1]-[3]; Opinions 00-79 [Vol. XIX]; 95-94 [Vol. XIII]; cf. Opinions 10-79 and 09-70 [discussing permissible level of involvement in an organization devoted to one side of a “longstanding controversial public issue”]).

For the purposes of the ban on public comment (see 22 NYCRR 100.3[B][8]), a matter remains “pending or impending” at least until the time for appeals has expired and often longer (see Opinions 01-53 [Vol. XX] [a judge who refers to the possibility of further litigation should decline to be interviewed about a criminal matter even though appellate remedies have been exhausted]; 95-48 [Vol. XIII] [judge should not publicly comment on a case in which an appeal is pending]; 99-113 [Vol. XVIII] [judge should not publicly comment on capital murder case “if an appeal or collateral proceeding in the case is pending or likely”]). The Committee also has advised that a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the “case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment” (Joint Opinion 98-126/98-129 [Vol. XVII]). But, the Committee has advised that a judge may discuss a criminal matter with an author “where the appellate process and post-conviction challenges ... have been exhausted, and there has been no litigation involving the matter for five years” (Opinion 04-110).

In the present inquiry, the judge’s proposed column on evidentiary issues arising from the “red light” program relates to specific matters recently heard by his/her co-judges. Even if these particular cases have not yet been appealed, they remain pending or impending until all aspects of these matters have been fully concluded and the time to appeal has expired (see e.g. Joint Opinion 98-126/98-129 [Vol. XVII]). Based on the nature of the legal challenges the inquiring judge describes, it seems likely that the law and its application will be the subject of additional litigation, at least until there is a definitive appellate court ruling on the matter or the law otherwise becomes settled. Under these circumstances it appears that evidentiary issues relating to the “red light” program should be considered the subject of “impending” proceedings within the meaning of the prohibition on public comment (see 22 NYCRR 100.3[B][8]; Opinion 99-113 [Vol. XVIII]).

The recent challenges to the law in the judge’s own court further suggest that this new law-enforcement procedure is a matter of substantial local controversy. As a result, it would also be inappropriate for the judge to raise potential new evidentiary issues or avenues of challenge that have not previously been decided, as it would have the effect of suggesting litigation strategy or risk the appearance of favoring one side (see 22 NYCRR 100.2[A]; 100.4[A][1]-[3]; Opinions 09-62; 07-37).

Taking all of the above rules and opinions into consideration, the Committee concludes that if the judge chooses to write about evidentiary issues relating to the red light program, the judge may not comment on pending or impending cases (see 22 NYCRR 100.3[B][8]). Further, the judge should limit his/her comments to the applicable law and an objective description of matters of record in cases that are no longer pending (see Opinions 03-141 [judge may comment on landlord-tenant matter that is not on appeal after the time to take an appeal has expired, but comments must be “discreet” and “limited to facts on the record”]; 03-65 [judge in a matrimonial part may compile recent appellate decisions in matrimonial law for a monthly update service, without providing any commentary on the decisions]; 95-48 [Vol. XIII] [judge’s responses to inquiries concerning cases he/she prosecuted as district attorney must be “discreet” and “limited to facts of record”]; see also Opinion 04-115 [judge and his/her spouse who is a practicing attorney should “limit the content of [their] article to a review of applicable statutes and cases as opposed to litigation strategies”]). That is, the judge should simply describe the motions and decisions in previously decided litigation that is no longer pending without comment (see id.).