Opinion 18-132

September 6, 2018

Digest:         A full-time judge who presides in criminal cases may participate in an interview with a not-for-profit entity retained by the county legislature to make recommendations concerning jail overcrowding, subject to generally applicable limitations on judicial speech and conduct.

Rules:          22 NYCRR 100.0(U)-(V); 100.2; 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(1); Opinions 15-100; 08-19.

Opinion:

         A county legislature asked a not-for-profit entity to help “develop solutions to reduce the number of inmates incarcerated locally” and “make specific recommendations to the [legislature] regarding reducing the size of the current jail population.” The entity would like to interview sitting judges as part of their “data collection process.” A full-time judge who presides in criminal cases asks if he/she may participate.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) but may engage in extra-judicial activities, subject to limitations (see generally 22 NYCRR 100.4[A][1]-[3]). Full-time judges generally are prohibited from appearing at a public hearing before an executive or legislative body or official, except on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]). A judge also must not publicly comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). 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 commenced (see 22 NYCRR 100.0[U]-[V]).

         Where, as here, a not-for-profit organization is acting on behalf of the county legislature on an initiative involving the law, the legal system and the administration of justice, we believe judges may voluntarily participate in “data collection” interviews about their observations relating to a certain class of cases, subject to generally applicable limitations on judicial speech and conduct (cf. Opinion 08-19).

         Whether ethics questions might arise during the interview will, of course, depend on the circumstances. For example, should the judge’s observations concern a specific, identifiable case that is “pending or impending” (see e.g. Opinion 15-100 [“a matter remains ‘pending or impending' at least until the time for appeals has expired and often longer,” that is, “as long as any appeal or collateral proceeding in the case is pending or likely”] [citations omitted]), the judge must refrain from commenting publicly about pending or impending cases (see 22 NYCRR 100.3[B][8]).

         Specifically, we believe the principles described in Opinion 08-19 (citations omitted), concerning a judge’s subpoenaed testimony at a public hearing “about what the judge has observed in a certain class of cases,” also apply to the voluntary interview envisioned here:

The Committee has stated in contexts different from, but relevant to, the present inquiry, that a judge who discusses a case in a public setting should not refer to a specific pending case except as to facts of record. [Here, too], a judge may describe generally or collectively the judge’s observations in cases (some of which may be pending) without referring to a particular case. If the public interest requires reference to a particular case that is still pending in the trial court or pending appeal, such testimony should be limited to the extent possible to a brief, objective, and precise description of facts of record, without comment.

...

[The] judge should avoid statements about the merits of a case and statements that cast doubt on his/her impartiality or indicate a predisposition to decide cases in a certain way. Also, the judge should not become involved in partisan political controversy. [Comments] growing out of a pending case may, depending on the circumstances, require disclosure to the parties in a pending case, or recusal.