Joint Opinion 11-154/11-155
January 26, 2012
Digest: Subject to appropriate administrative approvals, a full-time trial court judge may permit a for-profit video production company to film regular court proceedings for a documentary, and may permit a local public access television channel to video selected court hearings for broadcast at a later time, as long as the judge will merely perform his/her regular judicial duties while being filmed, will not receive compensation from the filming company or broadcaster, and will not allow the filming process to interfere with the court’s proceedings.
Rules: Judiciary Law §212(2)(l); 22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C), 100.3(B)(1)-(3); 100.4(D)(3); 101.1; Opinion 11-105.
Opinion:
In Inquiry 11-154, a full-time trial court judge states that a television producer has asked the judge for permission to film proceedings in the judge’s court “and ha[s] stressed that [the film company] would do so in a manner that protects the integrity of the court and that maintains the anonymity of those involved.” The judge believes the producer does not seek to disparage the judge or the courts but, instead, seeks to produce a documentary that will show the workings of the criminal justice system. The judge further states that once the producer has created a preliminary film, “we would all have the ability to screen and approve it in writing before it is released.” In Inquiry 11-155, another full-time judge expresses concern that certain popular television shows “have warped and distorted the public’s perception of court proceedings.” As a corrective, the judge would like to have a local public access television channel record selected small claims hearings in the judge’s courtroom for broadcast at a later time. The judge states that the proceedings would take place as usual in the judge’s assigned courtroom and that the judge would not permit a hearing to be broadcast without written waiver from all litigants. The judge states that neither the litigants nor the judge would receive any compensation for their participation.
A judge must always avoid even the appearance of impropriety (see 22 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]). In the performance of judicial duties, a judge must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]) and must, among other things, require order and decorum in proceedings before the judge (see 22 NYCRR 100.3[B][2]). A judge must be patient, dignified and courteous to those with whom the judge deals in an official capacity and must require similar conduct of those subject to the judge's direction and control (see 22 NYCRR 100.3[B][3]). A judge also must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) and, more specifically, a full-time judge may not be an “active participant of any business entity” (22 NYCRR 100.4[D][3]).1
The Committee has advised that, at the Office of Court Administration’s request, an administrative judge may permit a for-profit video production company to film arraignment proceedings for a documentary, as long as the arraigning judge will merely perform his/her regular judicial duties while being filmed, without any further participation by the judge, and will not allow the filming process to interfere with the proper conduct of the proceedings (see Opinion 11-105).
Here, the inquiring judges are trial court judges, rather than administrative judges, and there is no indication that the Office of Court Administration has authorized or requested such filming. Nonetheless, the Committee concludes that the same principles apply.
Thus, subject to appropriate administrative approvals under Part 29 (see 22 NYCRR 29.1), the inquiring trial court judges may permit court proceedings to be filmed, provided that the judges will merely perform their regular judicial duties during filming, and will receive no compensation from the film or broadcast company (see Opinion 11-105; 22 NYCRR 100.4[D][3]). In addition, the judges must not allow the filming or broadcasting process to interfere with the proper conduct of the proceedings (see Opinion 11-105; 22 NYCRR 100.3[B][1]-[3]). The Committee further notes that, if any legal questions are raised by the proposed filming of arraignments, such matters are beyond the Committee’s jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).
_____________________________
1On September 21, 2010, the Chief Judge of the Court of Appeals temporarily suspended Section 100.4(D)(3) of the Rules Governing Judicial Conduct, subject to a case-by-case conflict check by the Office of Court Administration’s Counsel’s Office. Neither this section of the Rules nor the suspension is implicated here as long as the inquiring judges merely perform their regular judicial duties without any additional compensation for participating in the proposed filming. As in Opinion 11-105, the inquiring judges do not propose any active participation in the video (such as participating in interviews or offering advice to the video production company).