Opinion 15-30

March 19, 2015

Digest:         A judge should not affirmatively assist a newspaper in improving the accuracy of its reporting by regularly supplying factual information to the newspaper about cases in the judge’s court.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.3(B)(8); Opinions 12-146; 11-100; 10-206; 10-153; 08-135; 07-185/08-68/08-77; 00-65; 96-111; 94-22; 92-13.

Opinion:

         The inquiring full-time judge states that a local newspaper frequently publishes inaccurate information about cases pending in the judge’s court. For example, “on many occasions,” the newspaper has reported incorrectly the crime or violation being charged, the identity of the arraigning judge, the return date on a pending case, the existence or amount of a bail recommendation, and/or the judicially ordered bail amount. The judge asks if he/she may provide information of public record to the media, on the judge’s own initiative, to help prevent such inaccuracies.¹ Alternatively, the judge asks if he/she may respond to a standing media request for such information on an ongoing and continuing basis. In support of the proposed course of action, the judge suggests that the court “has a vested interest in ensuring that any and all information about cases pending before it is being disseminated and reported accurately.”

         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 allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must personally observe high standards of conduct “so that the integrity and independence of the judiciary will be preserved” (22 NYCRR 100.1). A judge also must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories,” although this restriction “does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court” (22 NYCRR 100.3[B][8]).

The Public Comment Rule

         Preliminarily, the Committee notes that recently decided cases in the inquiring judge’s trial-level court will remain “pending or impending” for purposes of the public comment rule “at least until the time for appeals has expired and often longer” (Opinion 10-153). Indeed, as the Committee explained in Opinion 10-206:

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 been commenced (see 22 NYCRR 100.0[U], [V]). A matter is “pending or impending,” even after the original trial is complete as long as any appeal or collateral proceeding in the case is pending or likely (see Opinion 99-113 [Vol. XVIII]; see also Opinion 04-01 [judge may not publicly discuss cases that “remain pending in some respect, e.g. appeals, collateral proceedings, parole hearings, etc.”]; Joint Opinion 98-126/98-129 [Vol. XVII] [judge may not publicly comment on portions of a pending matter that have become moot as long as the case itself remains pending]).

         Although the public comment rule allows a judge to answer strictly factual questions about a specific case’s status, such as “Is the Smith case on the calendar this morning?” (Opinion 00-65), a judge still must be careful not to “report on or summarize a court proceeding, comment on the merits of the case or preview how the judge might rule” (id.).² Thus, the Committee has advised that a part-time judge, working as a reporter, “may not cover cases...pending or impending in any court in the United States or its territories, as it would be difficult, if not impossible, to comply with the rule prohibiting public comment” (Opinion 11-100).    

         Moreover, the fact that newspapers wrongly report cases does not create an exception to the public comment rule. Indeed, the Committee has advised that “a judge may not comment publicly about a pending matter despite the false, misleading and inaccurate public statements being made by a litigant, even to correct the litigant’s public statements but may seek the assistance of an appropriate bar association or judicial association committee to do so” (Opinion 08-135; see also Opinion 94-22).³ Another available resource for judges is the Office of Court Administration’s Communications Office [Contact: (212) 428 2500].

Assisting the Media

         The Committee has advised that “a court should not prepare, maintain and/or produce information about court cases specifically and exclusively for the benefit of any particular party, person, or entity” (Opinion 07-185/08-68/08-77) and, thus, should not provide a local newspaper with a copy of a weekly court calendar that lists the defendants’ names, addresses, birth dates, and any sentences imposed, whether “to ease a reporter’s chore in searching police records” or to generate positive “public relations” (Opinion 96-111). Even assuming that all such information is in the public domain, the Committee reasoned that providing a weekly court calendar to the media “with knowledge of its intended publication could have an impact on the impartial performance of judicial duties and the independence of the judiciary” (Opinion 96-111; see 22 NYCRR 100.1; 100.2).⁴

         Moreover, even when the media is seeking strictly factual information about a specific case, the Committee has advised that it is best, whenever reasonably possible, that any “assistance” with court files or documents should be provided by “non-judicial court personnel in accordance with governing statutes and rules” (Opinions 07-185/08-68/08-77; 00-65; cf. Opinion 96-111 [“judges should not be engaged in the task of providing the information to the newspaper in the form requested”]).

         However, the Committee has advised a judge may submit his/her written decision at the end of a case to a local newspaper for publication, after the decision has been filed with the court the judge does not comment in any way about the decision, including in his/her cover letter to the newspaper (see Opinion 12-146).

Conclusion

         Here, it appears the inquiring judge wishes to undertake the project of compiling and reporting information about cases in the inquiring judge’s court to the local newspaper, which has not, in fact, requested the judge’s assistance. Nor does the inquiry suggest such a project is necessary for court operations, or that the judge seeks to make available to the public a pre-existing record that the judge compiles for his/her own judicial purposes.

         The Committee thus concludes the inquiring judge should not affirmatively assist a newspaper to improve the accuracy of its reporting by regularly supplying it factual information about cases in the judge’s court, whether such compilation and reporting is done entirely sua sponte or in response to a standing media request for such information (see Opinion 96-111).

         Instead, the judge may permit non-judicial court personnel to respond to appropriate requests from the newspaper in accordance with governing rules and statutes (see Opinions 00-65; 96-111), and the judge may send copies of written decisions to the newspaper after the decisions have been filed with the court clerk, subject to any applicable statutory provisions and without commenting on the decisions in any way (see Opinion 12-146; 22 NYCRR 100.3[B][8]).

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         ¹ For arraignments, the judge proposes to provide the names of the defendant and the arraigning judge, the charge(s), any bail recommendations, and the amount of bail set. With respect to “dispositions of cases,” the judge would provide the defendant’s name, the original and reduced charges, the prosecutor’s recommendations concerning charges and sentencing, copies of written decisions, and the sentence imposed by the court.

           ² In Opinion 00-65, the judge listed eight media inquiries about one case, all of which the Committee deemed strictly factual inquiries about the status of the case and would not require anyone to “report on or summarize a court proceeding, comment on the merits of the case or preview how the judge might rule.”

           ³ By contrast, where a judge was criticized in a newspaper article in connection with a case that was no longer pending or impending, the Committee advised that the judge may write the editor “to rectify ... procedural misconceptions” (Opinion 92-13). In doing so, “the judge must ... scrupulously avoid personalizing the comments, refrain from invective, and be objective and dispassionate in the commentary, so as not to detract in any way from the dignity of judicial office and to uphold the judicial process” (id.). The Committee also advised that the judge’s proposed response, although permissible subject to such limitations, was nonetheless “an unwise course” and that a response to media criticism is best provided by a bar association (id.).

         ⁴ Conversely, the Committee has advised that a judge “may, subject to all applicable statutory provisions concerning confidential information or sealed records, share information with members of the public, the media and the parties who appear in the court that he/she compiles for his/her own use to facilitate court operations, including a court calendar showing details of cases that may be heard on a particular court night and a court calendar showing the dispositions of cases heard on a particular court night” (Opinion 07-185/08-68/08-77).