Opinion 15-165

September 10, 2015

Digest:         In these circumstances, a judge may not provide the court’s internal weekly case summaries to a newspaper for publication.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.3(B)(8); Opinions 15-30; 07-185/08-68/08-77; 00-65; 96-111.

Opinion:

         A part-time judge states that his/her court clerks prepare case summaries for each matter that comes before the court, including the litigants’ names and ages, the relevant charges and disposition, and compile case summaries on a weekly basis. The compilation is prepared for the court’s internal use so the judge may quickly refer to a particular matter and its disposition, and does not include any confidential information or commentary. The judge has provided a sample for the Committee’s review, and asks whether he/she may send such weekly compilations to a local newspaper for publication.

         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 judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must personally observe high standards of conduct so that the integrity and independence of the judiciary is preserved (see 22 NYCRR 100.1). A judge also must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories,” although this restriction “does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court” (22 NYCRR 100.3[B][8]).

          Although the Committee has advised that a judge may, subject to all applicable statutory provisions concerning confidential information or sealed records, “share information with members of the public, the media and the parties who appear in the court that he/she compiles for his/her own use to facilitate court operations, including a court calendar showing details of cases that may be heard on a particular court night and a court calendar showing the dispositions of cases heard on a particular court night” (see Opinion 07-185/08-68/08-77), this principle is subject to limitations.

         Of particular note, the Committee has advised that a judge should not supply a newspaper with factual information about cases in the judge’s court, on its own initiative or in response to a standing media request for such information, for the purpose of assisting the publication’s reporting of court matters (see Opinions 15-30; 96-111). Even if the information is otherwise available in the public domain, the Committee observed that compilation and dissemination of a weekly court calendar, which included the names, dates of birth and sentences imposed by the court, to a local newspaper to facilitate the reporting of such information “could have an impact on the impartial performance of judicial duties and the independence of the judiciary” (Opinion 96-111).

         Moreover, the public comment rule applies when a judge wishes to share documents created for internal use with the public (see 22 NYCRR 100.3[B][8]). The sample case summaries provided for the Committee’s review include selected details of allegations against individuals who have been charged with crimes and whose cases are still pending before the judge;¹ the selection of these particular details is itself a form of comment on the case. The Committee has previously noted the Commission on Judicial Conduct’s warning “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 anyone else, about a case pending before him” (Opinion 00-65 [emphasis in original]). Indeed, where, as here, the cases are summarized with different levels of detail, inclusion of more details for some criminal charges could even potentially create a public impression that the court finds those charges more credible or significant. There may be additional concerns if the compilation itself is selective, covering only a relatively small percentage of the cases that came for the judge. Accordingly, in the Committee’s view, external distribution of this weekly case summary compilation could impact “the impartial performance of judicial duties and the independence of the judiciary” (Opinion 96-111).

         For all these reasons, this judge should not provide a local newspaper with the court’s internal weekly compilation of case summaries for publication (see Opinions 15-30; 00-65; 96-111; 22 NYCRR 100.3[B][8]).

         The judge may, however, allow court personnel to respond to appropriate requests from the media consistent with governing rules and statutes (see Opinions 15-30; 00-65; 96-111).

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         ¹ For example, some of these defendants were released on their own recognizance to appear at a later date.