December 10, 2020
Digest: On these facts, a full-time judge may not accept a speaking engagement to discuss a not-for-profit organization’s experience in navigating a highly controversial licensing application and appeal process.
Rule: 22 NYCRR 100.0(M); 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(C)(1); Opinions 20-128; 19-152; 19-126; 19-30; 15-100; 05-08; 03-84/03-89.
The inquiring full-time judge is an officer or director of a not-for-profit charitable or civic organization. The organization recently received a license from a governmental agency, following a highly contested year-long administrative application and appeal process. Indeed, the judge notes that the time for opponents to bring a lawsuit challenging the organization’s license has not yet expired. Because the overall process proved very difficult and time-consuming, the judge has been invited to speak about the organization’s experience at a free educational event sponsored by certain not-for-profit groups that wish to seek changes in applicable law to simplify or abolish certain aspects of the current licensure requirements.
A judge 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 judge must not make any public comment about “a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B]).
We note that the identity of the event’s sponsors, standing alone, does not necessarily preclude the judge’s participation.1 We have said that judges may participate in legal educational programs sponsored by not-for-profit advocacy organizations “provided that the judges do not seek to instruct on questions of strategy or tactics in support of the litigation engaged in by members of such groups, and do not comment publicly on pending or impending cases” (Opinion 03-84/03-89).
Here, however, we believe it would be inappropriate for the judge to accept the proposed speaking engagement for several interrelated reasons.
First, as a reminder, the rule prohibiting public comment on “pending or impending proceedings” within the United States or its territories reaches very broadly. Of particular note, a proceeding is “impending” when it is “reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]). As explained in Opinion 15-100 (citations and internal quotation marks omitted):
The ban on public comment on pending or impending proceedings is very broad because 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. Indeed, the Committee has advised that a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment.
Here, a legal challenge is reasonably foreseeable in light of the prolonged controversy involving the organization’s license application. Thus, the public comment rule applies. We note that, although the judge is an officer or director of the applicant, the judge was not the applicant and thus would not be “a litigant in a personal capacity” for purposes of the exception to the public comment rule (22 NYCRR 100.3[B]).
Second, we note the judge’s involvement in the organization’s license application and appeal process was, and needed to be, strictly behind the scenes in order to prevent any appearance that the judge was lending the prestige of judicial office to the organization’s application (see e.g. Opinions 19-152; 19-126; 05-08; 22 NYCRR 100.2[C]; 100.4[C]). Speaking publicly about the difficulties of the application process – especially as intensely controversial as it proved to be – could blur the lines between the judge and the applicant. Thus, even once the judge is satisfied that no related or collateral proceedings or challenges are reasonably foreseeable in any court, we believe it will still be more appropriate for a non-judge to be the public face of the organization with respect to the organization’s licensing application and appeal process. Indeed, in some circumstances it is necessary for a judge to resign as officer or director once a not-for-profit entity becomes involved in a controversial contested proceeding, in order to avoid “publicly associat[ing] him/herself with the [entity’s] positions on matters of public controversy” (Opinion 19-30).
Third, on these facts, we believe that providing extensive detail about the organization’s experience with the specific licensure requirements these advocacy groups wish to simplify or abolish, during an educational program expressly devoted to this purpose, could be seen as impermissible instruction “on questions of strategy or tactics” (Opinion 03-84/03-89).
In sum, we conclude that this judge may not accept a speaking engagement to discuss the not-for-profit organization’s experience in navigating this highly controversial licensing application process.
1 Although they are advocacy groups, they do not appear to be “political organizations” within the meaning of the Rules (see e.g. Opinion 20-128; 22 NYCRR 100.0[M]).