September 7, 2006
Digest: A judges’ association should not co-sponsor a forum, the subject of which is a recent Court of Appeals decision that may still be pending.
Rules: 22 NYCRR 100.3(B)(8); Opinion 98-101 (Vol. XVII).
The inquiring judge is the president of a judges’ association which has been asked to co-sponsor a forum concerning a July 2006 decision of the New York Court of Appeals. The purpose of the forum is to educate the particular community of which the association is a part, regarding the Court of Appeals and its importance to that community, and to encourage members of that community to advocate for the appointment of judges who are of the same persuasion as the association’s members. Some of the co-sponsors are clearly advocacy organizations that appear to be politically involved, albeit not on a partisan basis, and some may be considered PACs. The judge asks whether the association may co-sponsor the forum.
Implicit in this inquiry is the question of whether the judges’ association may co-sponsor a forum with groups that have a particular agenda, involving political issues and matters that may come before the courts. That is, would the co-sponsorship, in and of itself, constitute a prohibited public association “with matters that are the subject of litigation or public controversy?” Opinion 98-101 (Vol. XVII).
It is the Committee’s view that in this particular instance, providing a definitive answer to that question is unnecessary. Rather, we note that given its recency, the July 2006 Court of Appeals decision that is the subject of the forum, and indeed, is named in the forum’s title, may be subject to further judicial action in New York or elsewhere, e.g., before the United States Supreme Court. As long as this possibility remains open, the proceeding should be regarded as pending.
Section 100.3(B)(8) of the Rules Governing Judicial Conduct prohibits judges from commenting publicly on pending or impending proceedings. 22 NYCRR 100.3(B)(8). Clearly, participants in this forum will engage in public comment regarding this case. Sponsorship of the event, therefore, could readily be perceived as such public comment. Under such circumstances, we deem it inadvisable for the judges’ association to place its members in that position. Accordingly, the judges’ association should not co-sponsor this forum.