Opinion 11-100
September 15, 2011
Digest: A part-time judge may be employed full-time as a news reporter, subject to certain limitations. As for subject matter, a reporter/judge may not cover cases pending or impending in the United States or its territories nor cover politically sponsored events.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.5(A)(1)(c)-(e); 100.5(A)(1)(g); 100.5(A)(2); 100.5(A)(2)(i), (iii), (v); 100.6(B)(4); Opinions 10-153; 10-102; Joint Opinion 09-192/09-231; Opinions 09-180; 06-32; 04-110; 01-53 (Vol. XX); 00-115 (Vol. XIX); 99-113 (XVIII); Joint Opinion 98-126/98-129 (Vol. XVII); Opinions 95-48 (Vol. XIII); 90-119 (Vol. VI); 89-146 (Vol. IV); 88-133 (Vol. III); 88-106 (Vol. II).
Opinion:
A part-time judge who was previously a freelance newspaper writer and a staff reporter for a newspaper before assuming judicial office asks whether he/she may accept a position as a full-time newspaper reporter. If so, the judge further asks whether he/she may cover or write articles about (1) cases in other courts; (2) criminal justice or corrections issues, “such as local budgets or the operation of various aspects (e.g., probation, law enforcement) of the criminal justice system;” (3) public education, local health care systems, tourism issues, or local concerts; and (4) “local or county political events (e.g., caucuses, political party picnics or fund-raising events).” Finally, the judge asks whether any additional restrictions would apply when he/she is a candidate for re-election or election to another judicial office.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “attend[] political gatherings” except as expressly permitted under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1][g]) and 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]). Subject to these and other limitations, a part-time judge may engage in private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.6[B][4]).
The Committee has previously advised that a city court judge may write a weekly column about the law and courtroom procedure for a local newspaper, subject to certain limitations (see Opinion 88-133 [Vol. III]). The Committee further noted that if the judge receives compensation for the articles, the amount should be consistent with the Rules (see id.). Similarly, the Committee has advised that a judge may host a regularly scheduled television show about the law, including court procedures (see Opinion 89-146 [Vol. IV]) and may appear monthly on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system, again subject to certain limitations (see Opinion 10-102). Such work “cannot take place at a time that would interfere with the judge’s regular judicial duties” (Opinion 88-106 [Vol. II]). The judge must be careful not to comment on pending or impending cases in the United States or its territories (see Opinions 10-102; 00-115 (Vol. XIX); 22 NYCRR 100.3[B][8]) or to present topics that would signal a predisposition with respect to particular cases, or which would cast doubt on the judge's impartiality (see Opinions 89-146 [Vol. IV]; 88-133 [Vol. III]). The articles should be consistent with the dignity and integrity of the judicial office (see id.).
Accordingly, the Committee sees no obstacle to a part-time judge accepting full-time employment as a newspaper reporter, subject to the above limitations.
With respect to the judge’s questions about specific subject matter for articles:
(1) Cases in Other Courts. A judge who is working as a reporter may not cover cases that are pending or impending in any court in the United States or its territories, as it would be difficult, if not impossible, to comply with the rule prohibiting public comment (see 22 NYCRR 100.3[B][8]). As the Committee noted in Opinion 10-153:
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).
(2) Criminal Justice or Corrections Issues. Judges may write and publish books, articles, manuals, columns and commentaries about the law (see Joint Opinion 09-192/09-231), and the Committee has advised that part-time judges have more freedom to publicly discuss potentially controversial and politically charged topics than full-time judges, although they “must exercise such rights responsibly” (Opinion 06-32 [part-time town and village justice may speak about a “controversial” and “politically charged” subject as an attorney and an expert on the subject but not in his/her judicial capacity]). In the Committee’s view, a part-time judge who is also a reporter may cover criminal justice or corrections issues in his/her capacity as a reporter, including topics “such as local budgets or the operation of various aspects (e.g., probation, law enforcement) of the criminal justice system,” as long as the judge does not comment on a pending or impending proceeding (see 22 NYCRR 100.3[B][8]), indicate a predisposition to decide issues in a particular way or otherwise make comments that cast reasonable doubt on the judge’s capacity to decide issues impartially as a judge (see Opinion 10-153).
(3) Other Local Issues Such as Education, Medicine, Tourism, and the Arts. For similar reasons, a part-time judge who is also a reporter may cover topics of local interest such as public education, local health care systems, tourism issues, and local concerts, even if such topics may be controversial, as long as the judge avoids comment on pending or impending proceedings and does not cast reasonable doubt on the judge’s capacity to decide issues impartially as a judge (see generally Opinions 10-153; 06-32).
(4) Politically Sponsored Events. A judge may not cover local or county political events, such as caucuses, political party picnics or fund-raising events as a reporter because the Rules broadly prohibit a judge from “attending political gatherings” (22 NYCRR 100.5[A][1][g]), subject to certain exceptions not applicable here (see e.g. 22 NYCRR 100.5[A][2][i], [iii], [v] [judge as judicial candidate]; Opinion 09-180 [judge as registered voter]).1
In the Committee’s view, even though a judge who is seeking elective judicial office may attend political events in furtherance of his/her own campaign, this does not open the door to political reporting during the judge’s window period. Rather, the Rules provide that a judge may “participate in his or her own campaign for judicial office as provided in [Section 100.5]” (22 NYCRR 100.5[A][2]). As a result, the judge may attend political events in his/her capacity as a judicial candidate to the extent permitted by the Rules and prior Opinions (see e.g. 22 NYCRR 100.5[A][2][i], [iii], [v]). In other words, the Rules authorize a judge who is a judicial candidate to attend political events for the purpose of promoting his/her own campaign, not for journalistic purposes.2 Therefore, in the Committee’s view, the judge also should not cover political events as a reporter while the judge is a candidate.
Finally, the Committee emphasizes that a part-time judge’s outside employment as a reporter does not change the judge’s ethical obligations under the Rules Governing Judicial Conduct, regardless of whether or not the judge is in his/her window period as a candidate for elective judicial office (see 22 NYCRR 100.3[A] [the judicial duties of a judge take precedence over all the judge’s other activities]).
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1In Opinion 90-119 (Vol. VI), relying on former Section 100.7, the Committee advised that a part-time judge, who was also employed as a reporter for a local newspaper, may report on political events including campaigns, meetings and political fund-raisers, in the judge’s capacity as a reporter, as long as the judge did not indicate any personal support for the candidates at the political events (see Opinion 90-119 [Vol. VI]). Former Section 100.7 did not contain the broad prohibition on “attending political gatherings,” which now appears in Section 100.5(A)(1)(g). In the Committee’s view, Opinion 90-119 (Vol. VI) is inconsistent with current Section 100.5(A)(1)(g), and it is hereby overruled.
2If the inquiring judge were to report on politically sponsored events or other candidates’ campaigns, while engaging in his/her own permissible partisan political activity as a judicial candidate, it is virtually certain that his/her coverage would be perceived as partisan in nature and tantamount to endorsement or opposition of other candidates, parties or platforms (see generally 22 NYCRR 100.5[A][1][c]-[e]).