Joint Opinion 17-163/18-03/18-21
March 29, 2018
Digest: Subject to certain limitations, a full-time judge may, without compensation, (1) participate in an interview for a commercially produced television documentary series concerning a case he/she prosecuted over a decade ago, provided the case has completely terminated and no related proceedings are pending or impending; (2) appear occasionally on a commercially produced news program hosted by his/her first-degree relative, to share family-friendly jokes or riddles; and (3) appear on a commercially produced news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. In each instance, the judge need not conceal his/her identity as a judge or his/her participation in the program but should not personally promote the program to the public at large.
Rules: 22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C); 100.2(D); 100.3(B)(4); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(D)(3); Opinions 16-157; 16-83; 15-182; 15-133; 15-102; 15-93; 15-61; 14-99; 12-167; 12-113; 11-154/11-155; 11-105; 10-206; 10-102; 09-187; 09-182; 09-98; 08-81; 08-25; 02-72; 01-86; 00-79; 00-24; 99-86; 98-155; 95-94; 96-134; 95-48; 94-116; 89-22; 89-146; 89-06; 88-106.
Opinion:
Three full-time judges ask if they may participate in commercially produced television programs.1 In Inquiry 17-163, a judge who previously served as a prosecutor has been invited to participate in a filmed interview concerning a case he/she prosecuted more than a decade ago for part of a documentary series. The judge believes the underlying criminal case is entirely completed, the time for all appeals has elapsed, and that no related applications are pending. In Inquiry 18-03, a judge whose child is “a newscaster and anchor on a morning television show” asks if he/she may appear on-screen occasionally to read good-natured, family-friendly jokes or riddles. The judge would be identified as his/her child’s parent, rather than as a judge, and would not receive any compensation. Finally, in Inquiry 18-21, a judge has been invited to appear on a news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. The news segment would focus on the judge’s judicial office and mentoring activities. In addition, it would feature on-screen interviews of the judge regarding his/her educational background, professional experience, and his/her community service. The video would also depict the judge giving a speech at a community event with students, on the bench, and in chambers with students or interns.
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 avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and 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][8]). A judge’s extra-judicial activities must not interfere with judicial office and must not (1) cast reasonable doubt on his/her capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Moreover, a judge must not lend the prestige of judicial office to advance private interests, or permit anyone to convey the impression that they are in a special position to influence him/her (see 22 NYCRR 100.2[C]). A full-time judge must not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D][3]).
Overview of Prior Opinions
A full-time judge may participate in a traditional news program or talk show, even if it will air on a commercial television or radio station (see Opinion 10-102; accord e.g. Opinions 14-99; 09-98; 02-72; 00-79; 95-94; 89-146; 88-106). As explained in Opinion 10-102:
Whether the local broadcaster is a public or commercial station is irrelevant to the outcome of this inquiry. The Committee does not view monthly appearances on a local news program on a commercial television station as prohibited "active participa[tion]" in a business entity (see 22 NYCRR 100.4[D][3]), where the inquirer indicates that his/her appearance on the program "would not be advertised nor would it be promoted" (cf. Opinion 03-65 [judge may write for a commercial legal publishing company, but must ensure that the publisher does not engage in any marketing or other activity that can reasonably be perceived to exploit the judge's judicial position]).
However, we have applied a different standard where a full-time judge wishes to participate in a documentary film, video, or television series. Specifically, we have advised a full-time judge may participate in an educational video or documentary “if it is produced by a not-for-profit entity, but may not participate [if it is] commercially produced” (Opinions 16-157; accord 09-182; 01-86).
The Present Inquiries
On further consideration, we do not find our prior distinction between a news program and a documentary to be particularly compelling. News programs, like documentaries, are essentially packaged and sold; their owners and producers promote them and use them to make money. Nonetheless, we have “recognized that the community benefits from having judges take an active part in community affairs whenever possible” (Opinion 12-113), and thus we continue to believe that judges should, to the extent permitted by generally applicable limitations on judicial speech and conduct, be able to participate in news programs. Thus, our recognition that documentaries and news programs exist on a continuum of non-fiction commercial programming leads us to look for ways to increase a full-time judge’s ability to participate in such programs.
Accordingly, the key question is how to ensure that a full-time judge’s participation in a commercially produced news program or documentary does not create an appearance that he/she is an “active participant” in the business entity that is producing and promoting the program. For this purpose, we believe it is sufficient that (1) the judge is not compensated for his/her participation and (2) the judge does not personally promote the program to the public at large (cf. Opinion 12-167 [judge may speak, without compensation, at a free continuing legal education program co-sponsored by a local hospital and a corporate sponsor, and held at the offices of the corporate sponsor, but must not “endorse or otherwise advance the private interests of the corporate sponsor”]). The judge may mention his/her participation in the program to people he/she knows personally, such as family and friends, but not to the general public.
We thus overrule or modify Opinions 16-157, 09-182, and 01-86 to the extent they prohibit a full-time judge from participating in a commercially produced documentary without compensation. We also modify Opinion 10-102 to the extent it suggests that a full-time judge may not appear on a news program if his/her appearance on the program will be advertised or promoted. As always, a judge may not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]); but we do not believe this section is violated merely because a television network advertises that an interview with a particular judge will air at a particular time. We also note the judge need not conceal his/her identity as a judge.
Applying these principles to the present inquiries, we conclude all three proposed activities are permissible for a full-time judge, subject to certain limitations.
The judge in Inquiry 17-163 may participate, without compensation, in an interview for a commercially produced television documentary series concerning a case he/she prosecuted over a decade ago, provided the case has completely terminated and no related proceedings are pending or impending. As we noted in Opinion 15-61 (citations omitted):
The bar against public comment extends “at least until the time for appeals has expired and often longer,” such as when “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” is reasonably foreseeable. 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.
Should the judge in Inquiry 17-163 choose to participate in this interview, he/she must also be careful that any remarks concerning his/her prior employment as a prosecutor do not cast reasonable doubt on his/her ability to be fair and impartial as a judge (see Opinions 10-206; 95-48; 22 NYCRR 100.4[A][1]). In general, we believe this can be very easily accomplished if (for example) the judge speaks about his/her prosecutorial activities in the past tense or otherwise distinguishes between his/her past and present roles.
In Inquiry 18-03, we conclude the judge may appear occasionally on a commercially produced news program hosted by his/her first-degree relative, without compensation, to share family-friendly jokes or riddles. Even though the judge proposes to be identified only as a family member of the television host, the judge must ensure that his/her jokes are consistent with the dignity of judicial office (see 22 NYCRR 100.4[A][2]). We note that the judge’s sample jokes rely primarily on innocuous word-play or puns, and do not refer to personal characteristics such as age, race, color, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status (cf. 22 NYCRR 100.2[D]; 100.3[B][4]). Although the jokes are not, in themselves, newsworthy, we note that this outcome is consistent with our prior view that a judge may appear “on a television game show with [his/her] family,” where the judge “would not be identified on the show as a judge or by [his/her] full name” (Opinion 89-06).2
In Inquiry 18-21, the judge may appear, without compensation, on a commercially produced news segment in honor of the achievements of individuals who share a particular racial, ethnic, or cultural background or heritage. Clearly, the judge may participate in on-screen interviews concerning his/her educational background, professional experience, and community service and allow his/her speech at a community event with students to be recorded (see e.g. Opinions 16-157; 15-133). As for being shown on the bench or in chambers with students or interns, any photography or videotaping inside the courthouse is subject to appropriate administrative approvals (see 22 NYCRR 29.1), and the judge must not allow the filming process to interfere with the proper conduct of proceedings (see Opinions 11-154/11-155; 11-105). The judge must take particular care to abide by all applicable limitations on judicial speech and conduct, including the rule prohibiting public comment on cases that are pending or impending in the United States or its territories (see e.g. Opinion 15-93; 22 NYCRR 100.3[B][8]).
Note on Participation by a Full-Time Judge in Fictional (or Fictionalized) Commercial Films or Television Programs
The present opinion distinguishes between participation in non-fiction programming, such as news programs, talk shows, documentaries, or other educational or public service programs, and fictional programming, even if “inspired” by real life.
Thus, we leave unaltered our prior prohibition on a full-time judge’s participation in a fictional commercial program by acting, being interviewed on camera, hosting the show, or serving as a paid or unpaid consultant or advisor (see e.g. Opinions 09-187 [appearing in one episode of a commercial television series]; 08-81 [unpaid and uncredited advisor to a friend who is developing a fictional show about rookie police officers for commercial television]; 08-25 [unpaid and uncredited advisor to a comedian on how to portray a judge on a commercial television show]; 99-86 [portraying a judge in a television commercial, where any remuneration will be waived or donated to charity]; 96-134 [compensated actor in a brief role in a commercial motion picture]; 94-116 [compensated script reviewer for a commercial television production intended to result in a fictionalized television series based on the judge’s judicial experiences and life]; 89-22 [paid consultant to a weekly dramatic commercial television show about the court system and judges]).
Likewise, the present inquiry does not change the result in Opinion 15-182, where although “the proposed commercial television series will be based on the inquiring [full-time] judge’s personal experiences, issues and events discussed in the judge’s book,” the proposed series “is neither a traditional news program or talk show nor primarily an educational or public service program” (see Opinion 15-182).
Of course, a full-time judge may still sing or act in a not-for-profit, non-fund-raising theatrical production (see Opinions 00-24; 98-155), as this does not implicate the ban on being an “active participant of any business entity” (22 NYCRR 100.4[D][3]).
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1 We note that part-time judges are not subject to 22 NYCRR 100.4(D)(3) and thus may appear in commercial films and television programs (see e.g. Opinion 16-83).
2 However, if a full-time judge wishes to appear on a televised game show in future, we suggest he/she write in for specific guidance, as such shows “vary widely in their format and content and their overall commercialization” (Opinion 15-102 fn 2), issues we did not address in Opinion 89-06.