Opinion 23-103

September 7, 2023

Digest:  (1) A town justice may not grant permission to the town court clerks to use the town court’s courtroom to film for-profit training videos. 
(2) Whether some other person or entity may grant such permission raises legal and administrative questions we cannot answer.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 29.1(a); 100.2; 100.2(A); 100.2(C); 100.3(C)(3); 100.4(D)(1)(a); 101.1; Opinion 06-117.

Opinion:

          The inquiring town justice’s court clerks have formed their own “independently owned and operated business, to produce training videos” to help new court clerks learn court operations.  The clerks have asked the judge for permission to film these videos in the town court’s courtroom.  In the videos, actors would perform all roles, such as judge, attorneys, defendant, and a court clerk.  The dockets would be invented, and care would be taken in filming to avoid revealing any actual court records, personal identifying information, or even the specific location of filming.  The inquirer’s court clerks would “provide narration as to what the Court Clerk [in the video] should be doing before, during and after the court process which would include screenshots of the appropriate software programs.”  The inquiring judge asks if they may ethically permit the town court clerks to use the courtroom as a filming location for this commercial purpose, “outside of court hours and at times that do not otherwise interfere with Town business.”  It appears that the courtroom is in a building owned by the town and is also used for town board meetings. 

          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]).  For example, a judge must not engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]) or lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).  A judge also must “avoid nepotism and favoritism” (22 NYCRR 100.3[C][3]).

          This question presents a matter of first impression.  Although we have advised that judges may not permit fund-raising events to be held at courthouses (see Opinion 06-117 [“the rules prohibiting fund-raising apply not only to judges, but also to courts and court entities, and to fund-raising on court property”]), we note that the proposed use here would not involve any fund-raising activities, even though the resulting training videos would later be offered for sale. 

          We note, initially, that who may ultimately grant permission to make audiovisual recordings in the courtroom of a town court of the Unified Court System, which is located within a building owned by the town, may raise legal and/or administrative questions beyond our jurisdiction to answer.  For example, Section 29.1(a) of the Rules of the Chief Judge provides:

(a) Taking photographs, films or videotapes, or audiotaping, broadcasting or telecasting, in a courthouse including any courtroom, office or hallway thereof, at any time or on any occasion, whether or not the court is in session, is forbidden, unless permission of the Chief Administrator of the Courts or a designee of the Chief Administrator is first obtained; provided, however, that the permission of the Chief Judge of the Court of Appeals or the presiding justice of an Appellate Division shall be obtained with respect to the court over which each presides. Such permission may be granted if:

(1) there will be no detraction from the dignity or decorum of the courtroom or courthouse;

(2) there will be no compromise of the safety of persons having business in the courtroom or courthouse;

(3) there will be no disruption of court activities;

(4) there will be no undue burden upon the resources of the courts; and

(5) granting of permission will be consistent with the constitutional and statutory rights of all affected persons and institutions.

Permission may be conditioned upon compliance with any special requirements that may be necessary to ensure that the above conditions are met.

          As we see it, the judicial ethics question before us is extremely narrow.  Here, the town court clerks have formed a for-profit, commercial enterprise.  They are asking permission from the town justice who works closely with them in day-to-day court operations to use the town courtroom for their personal profit.  In our view, the town justice must decline this request, as it would create, at the very least, an appearance of favoritism for the court clerks’ own supervisor to approve commercial use of their joint workplace to produce for-profit training videos. 

          We do not and cannot comment on whether the town justice has actual legal or administrative authority to approve filming requests or what would happen if the court clerks were to present their filming request to the town board or to an appropriate designee of the Chief Administrative Judge (see generally Judiciary Law § 212[2][l]; 22 NYCRR 101.1).