March 19, 2015
Digest: A judge may not engage in a panel program about his/her recent decision, if the time to appeal has not expired, as the occasion would call for impermissible public comment by the judge; and an attorney who argued the case before the judge is a fellow panelist.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 101.1; Opinions 15-30; 14-26; 14-19; 14-09; 13-123; 13-06; 10-153; 10-24; 09-181; 09-62; 09-11; 06-15; 01-53; 01-03; 90-67.
The inquiring judge has been invited to speak at an upcoming conference, concerning the judge’s recent ruling from the bench on the admissibility of DNA evidence.1 One fellow panelist, an attorney who argued the issue before the judge, “would address the ‘challenges’ that [the attorney’s client] dealt with in my case,” and the judge “would talk about why I ruled as I did” and “say essentially what my [forthcoming written] opinion will say.” Two other panelists would discuss additional issues relating to DNA evidence. The inquiring judge asks whether he/she may participate in the panel.
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 must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B]), and may engage in extra-judicial activities, such as speaking or lecturing, so long as they are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-; 100.4[B]). A judge, however, is prohibited from making 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]). A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet commenced (see 22 NYCRR 100.0 [U]-[V]). Additionally, “a case remains ‘pending or impending’ if it ‘has not been finally resolved and the time for appeal has not yet been exhausted’” (Opinion 13-06; see also Opinion 14-26).
The Committee has previously advised that a judge may be a speaker or panelist in a wide variety of settings provided the judge avoids discussion of litigation strategy or tactics (see Opinion 09-62); topics that would comprise his/her partiality or suggest a predisposition to decide matters in a particular way (see Opinions 09-181; 06-15); or any impermissible commentary on pending or impending cases (see Opinions 13-123; 10-24).
Judges must abstain from commenting on prior decisions where the commentary concerns a case that may still be pending or impending (see Opinions 14-26; 01-03). The bar against public comment extends “at least until the time for appeals has expired and often longer” (Opinions 15-30; 10-153), such as when “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” is reasonably foreseeable (Opinion 09-11). Thus, even where a defendant’s appellate remedies have been exhausted, if post-trial motions have been or will be made, a judge should avoid public discussion of that case (see Opinion 01-53).
Here, the inquiring judge wishes to participate in a panel discussion of a decision so recent that it has not yet been reduced to writing. Where, as here, the time for appeals is not exhausted, the case remains “pending or impending” within the meaning of the Rules Governing Judicial Conduct (see e.g. Opinions 15-30; 10-153).2 In Opinion 13-06, the Committee offered guidance on how to discuss cases which are still “pending or impending” within the meaning of the Rules, i.e., if the matter has not been finally resolved and the time for appeal has not yet been exhausted:
minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them (see 22 NYCRR 100.3[B]).
Further, even though a judge may refer to his/her own prior decisions where an appeal is not pending or impending, the Committee has also cautioned judges against going beyond their published decisions (see Opinions 14-26; 90-67).
Here, the judge’s proposed comments would clearly go beyond the recent oral decision and elaborate on his/her reasoning. Indeed, it would be difficult, if not impossible, for the judge to comply with the public comment rule in a panel discussion of his/her recently issued decision with one of the attorneys who personally argued the case (see generally 22 NYCRR 100.3[B]; Opinions 14-26; 13-06; 90-67).
Finally, the Committee notes the appearance of impropriety is greater, under these facts, as this judge would be on the panel with an attorney for only one side of the case (see Opinion 14-09 [under these specific circumstances, a judge may not attend a lecture by a person on one side of a case that was recently before the judge, and which will focus on the judge’s recently issued decision in that case]).
Therefore, the Committee concludes the inquiring judge must not participate in the proposed panel discussion (see generally 22 NYCRR 100.2; 100.3[B]; 100.4[A]-; 100.4[B]).
1 “Deoxyribonucleic acid, better known as DNA, is a bodily substance that carries genetic information” (Opinion 14-19).
2 Although the Committee cannot resolve legal questions about how to calculate the appropriate period for appeals, collateral proceedings, or post-judgment applications (see Judiciary Law § 212[l]; 22 NYCRR 101.1), this period unquestionably extends beyond mere issuance of a judge’s written decision.