Opinion 23-02

February 2, 2023

Digest:         A part-time town justice, who is a high school teacher, may comment in the classroom on a pending or impending case arising in another jurisdiction. The judge may not reference specific cases in the judge’s court unless and until those cases are completely resolved, including any appeals that are pending. However, if students ask about matters relating to a pending or impending case in the judge’s court, the judge may respond by guiding a discussion that seeks to examine all sides of any issue without offering a personal opinion or predicting how the matter should or will be decided.

Rules:          22 NYCRR 100.0(V); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.6(B)(4); Opinions 20-179; 20-64; 20-31; 13-82; 11-77; 10-189; 95-105.

Opinion:

         A part-time town justice, who is also employed as a high school teacher, requests guidance on discussing relevant cases while teaching history, government and related social studies courses. In the judge’s view, it is important pedagogically to be able to explain or discuss both historic and current pending cases. The judge would not offer any personal opinions about any such cases, but would examine their facts, context, and implications, invite students to explore arguments on both sides of the issue, and consider the merits of those arguments as critiqued by commentators and experts.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may engage in public or private employment, provided that such employment “is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). Of particular relevance here, a judge must not make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B][8]), including “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).

         In general, the public comment rule applies even “while lecturing on or participating in panel discussions about current trends in the law,” including during Continuing Legal Education programs (Opinion 11-77). However, we have established a narrow “academic exception” to the public comment rule. Specifically, we have said that a judge who is a law school or college professor may comment, in the context of teaching a regular course of study, on cases pending in courts in other jurisdictions (see e.g. Opinions 20-64 [college professor]; 10-189 [law school professor] 95-105 [college professor]; see also Opinion 11-77 [distinguishing between “CLE programs” and “courses of study at a law school or college”]). However, even where the academic exception applies, the judge still may not comment on pending or impending cases within the judge’s own jurisdiction (see e.g. Opinion 13-82 [judge may not teach a law school course on the prosecution of a highly publicized local criminal case, where the criminal trial recently occurred in the judge’s jurisdiction and a related civil case is pending]).

         More recently, in Opinion 20-31, we said a judge may teach a law school course based on a homicide trial that occurred in the judge’s own jurisdiction only if the time for appeals was exhausted and no related matters are pending or reasonably foreseeable. We expressly “reaffirm[ed] our well-established but very narrow exception to the public comment rule: it is permissible when a judge is teaching a regular course of study at a law school or college… The exception is strictly limited to situations where the judge, as teacher of a regular course of study, wishes to comment in the classroom on a pending or impending case arising in another jurisdiction” (id.). In that instance, because the judge wished to use a case in which the judge personally presided, we noted that “the key question is whether the case is ‘pending or impending’ within the meaning of the public comment rule” (id.).

         Until now, we have not had the opportunity to consider extending the academic exception to professional educators who teach at the lower school levels. We now affirm and extend this principle, as part-time judges who are full-time lower school teachers should have the same opportunity as those who are law school or college professors to discuss pending or impending cases in other jurisdictions. Clearly, the judge may discuss the facts and contexts of a case, arguments on both sides of the issue and the merits of those arguments as offered and critiqued by commentators and experts.

         If students ask about a pending or reasonably foreseeable case arising within the jurisdiction of the judge’s court, the judge may respond by guiding a discussion that seeks to examine all sides of any issue without offering the judge’s personal opinion or predicting how the matter should or will be decided. In other words, such local matters, if raised, should be handled in a non-biased fashion in which the teacher does not offer any opinion until and unless the case has been resolved, and all appeals or reasonably foreseeable collateral proceedings have been exhausted (see e.g. Opinion 20-179 [“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”] [citation omitted]).

         In sum, we conclude that a part-time judge who is a high school teacher may teach history, government and related social studies courses, subject to the same “academic exception” applicable to college and law school professors. Accordingly, this judge may comment in the classroom on a pending or impending case arising in another jurisdiction. The judge may not reference specific cases in the judge’s court unless and until those cases are completely resolved, including any appeals that are pending. However, if students ask about matters relating to a pending or impending case in the judge’s court, the judge may respond by guiding a discussion that seeks to examine all sides of any issue without offering a personal opinion or predicting how the matter should or will be decided.