October 24, 2019
Digest: A judge may participate in an academic study on judicial diversity in state courts but must abide by generally applicable limitations on speech and conduct, including the public comment rule, and must neither disclose any non-public information acquired in a judicial capacity nor express a predisposition to decide matters in a certain way.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(11); 100.4(A)(1)-(3); 100.4(B); Opinions 18-36; 11-138; 10-131; 10-115; 09-192/09-231; 99-44; 97-56.
A judge asks if he/she may participate in a college professor’s study on judicial diversity in state courts by completing “a short survey.”1 The study is funded by a grant from the National Science Foundation “to advance scholarly understanding of who sits in judgment on our state courts – as well as to underscore the importance of a diverse judiciary.”
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’s extra-judicial activities must not cast reasonable doubt on his/her capacity to act impartially as a judge or otherwise interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-) and are otherwise generally subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]; Opinion 09-192/09-231 [discussing many rules and prior opinions]). For example, a judge 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]), nor disclose nor use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity (see 22 NYCRR 100.3[B]).
A judge may, subject to certain limitations, participate in an interview with a graduate student in connection with the student’s dissertation research on a legal issue and answer questions about the judge’s judicial experience with a form of court-ordered treatment (see Opinion 11-138); serve as a consultant to an academic research project on jurors’ memories (see Opinion 10-115); respond to a research survey and participate in a follow-up interview on changes in the judge’s court (see Opinion 10-131); and participate in a two-day meeting of a non-profit foundation’s research program on adolescent development and juvenile justice and discuss “the judge’s work in the area of juvenile justice and its implication for research, practice and policy” (Opinion 97-56). In addition, a judge may participate in efforts to improve diversity in the court system, subject to generally applicable limitations on judicial speech and conduct (see e.g. Opinion 18-36 [discussing prior opinions]).
Accordingly, we conclude this judge may likewise participate in an academic study on judicial diversity in state courts, subject to similar limitations. Of particular note, the judge must not comment on a pending or impending proceeding within the United States or its territories; must not disclose any non-public information acquired in a judicial capacity; and must not express any predisposition to decide matters in a certain way (see Opinions 11-138; 10-131; 99-44; 22 NYCRR 100.2[A]; 100.3[B]; 100.3[B]; 100.4[A]).
1To ensure the information collected cannot be connected to individual judges’ responses, the professor asks survey respondents not to provide their name on the survey or the return envelope.