Opinion 15-93

April 23, 2015

Digest:         A judge may serve as a panelist in a local college’s program on perceptions and realities of the criminal justice system, subject to generally applicable limitations on judicial speech and conduct.

Rules:          22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 14-26; 13-140; 13-82; 13-09/13-52; 13-06; 12-44; 11-77; 09-11; 01-03.

Opinion:

         A full-time judge asks if he/she may be a panelist at a college’s program on perceptions and realities of the criminal justice system. The students comprise the audience, and can attend free. Other panelists include defense attorneys, prosecutors, law enforcement agents, and professors with backgrounds in those areas.

          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 avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) 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]). A judge may lecture, teach and otherwise participate in extra-judicial activities that are not incompatible with judicial office and 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]; 100.4[B]).

         Clearly, this judge may participate in this program. The sponsor is an educational institution; the intended audience is a general one (i.e. college students); the proposed panel is balanced with both defense and prosecution perspectives; and the announced topic (i.e. comparing the theories or ideals of our criminal justice system with current realities), while potentially controversial, is one that warrants public discussion in order to improve the administration of justice (see generally e.g. Opinions 13-140; 12-44; 01-03).

         The judge’s participation is, of course, subject to all applicable limitations on judicial speech and conduct, including the public comment rule and the prohibition on impermissible ex parte communications as well as the need to avoid even the appearance of impropriety (see 22 NYCRR 100.2[A]; 100.3[B][6], [8]).

         For our readers’ convenience, we herein reiterate some general reminders and guidance on these principles in the context of the present inquiry.

         A judge must take care that his/her remarks do not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A]). For example, in Opinion 13-140, the Committee advised that, when addressing a civilian complaint review board on the law of search and seizure and arrest procedures, a judge

should take particular care if asked to comment on police-citizen encounters and relations. The judge should strive to avoid unnecessary speculation about possible attitudes, behaviors, or motivations of either the police or citizens, which could undermine the judge’s appearance of impartiality. Likewise, the judge should seek to avoid the appearance that he/she is providing partisan advice on how or when to prosecute police officers, or on how citizens should interact with the police

(Opinion 13-140 [citations omitted]).

         A judge may describe generally applicable rules and procedures, and may comment generally on the administration of justice, but must not “editorialize” or otherwise comment on any pending or impending cases within the United States or its territories (see Opinions 13-140; 13-09/13-52; see also 22 NYCRR 100.3[B][8]). In Opinion 13-06, the Committee offered guidance on how to discuss cases which are still “pending or impending” within the meaning of the Rules,¹ i.e., if the matter has not been finally resolved and the time for appeal has not yet been exhausted:

minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them (see 22 NYCRR 100.3[B][8]).

While the Committee “has recognized that in teaching courses of study at a law school or college, it may be inevitable that some comment might have to be made on a pending case” in another jurisdiction, the Committee has strictly limited this exception “to those situations where the judge is a teacher of a regular course of study” (Opinion 11-77).² Thus, the exception does not apply when “participating in panel discussions about current trends in the law” (id.), as the inquiring judge plans to do.

         In order to avoid any possible appearance that the judge is permitting others to subject him/her to improper ex parte communications, the judge should discourage any discussion of a case that is currently pending before the judge (see 22 NYCRR 100.2; 100.3[B][6]). A judge may refer to his/her own previous decisions, provided the matter is no longer pending or impending, but the discussion should not go beyond the published decision (see Opinion 14-26).

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       ¹ A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U], [V]). For the purposes of the public comment rule, “a matter remains ‘pending or impending’ at least until the time for appeals has expired and often longer” (Opinion 14-26), such as when “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” is reasonably foreseeable (Opinion 09-11).

        ² The Committee has further advised that, even where the exception applies, “no comment may be made upon cases arising in that judge’s court or in a court within the judge’s jurisdiction” (Opinion 11-77; see also e.g. Opinion 13-82).