Opinion 16-62

May 5, 2016

Digest:         A judge who is a respondent in an Article 78 proceeding challenging the judge’s order in an ongoing case may comment on the circumstances surrounding the order in his/her response.

Rules:          CPLR 7804(i); 22 NYCRR 100.2(A); 100.3(B)(8).

Opinion:

         The inquiring judge is a respondent in a CPLR Article 78 proceeding seeking to annul/vacate the judge’s order in a pending criminal case. The judge asks if he/she may comment on the criminal case in his/her answer or appearance in the proceeding.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and may not publicly comment about a pending or impending case in the United States or its territories, unless an exception applies (see 22 NYCRR 100.3[B][8]). Of particular note here, the rule “does not prohibit judges from making public statements in the course of their official duties” (id.).

         For purposes of the public comment rule, the Committee believes that responding to an Article 78 proceeding naming the judge in his/her official capacity, and concerning the judge’s official duties, is likewise part of those official duties (cf. CPLR 7804[i] [noting that if a respondent judge chooses to or is ordered to appear, he/she “shall be entitled to be represented by the attorney general”]). The judge may therefore respond to the petition, and comment on the contested order and the circumstances surrounding its issuance when appearing in the special proceeding, provided he/she otherwise refrains from commenting on the merits of the underlying criminal case.