June 11, 2015
Digest: A judicial association may respond to public criticism of a judge for making statements about a juror in a written decision, provided that the response does not involve comment on a pending or impending proceeding, and subject to certain additional limitations.
Rules: 22 NYCRR 100.2(A); 100.3(B)(1); 100.3(B)(8); Opinions 15-30; 14-26; 13-86; 10-206; 08-135; 08-114; 06-50; 04-71; 00-65; 00-25; 97-97; 94-22; 93-78; 92-114/92-127; 92-13; 90-67.
A judge asks whether a judicial association may publicly respond to a newspaper article which sets forth a local attorney’s criticisms of another judge. In particular, the attorney criticizes the judge for including statements about a juror in the judge’s recent written decision. The article focuses exclusively on the attorney’s views and contains no suggestion that the reporter attempted to consult any other source. The inquiring judge states that the criticized judge would not participate in the judicial association’s response to the article.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B]). 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 (see 22 NYCRR 100.3[B]), but may make public statements in the course of his/her official duties or explain for public information the court’s procedures (see id.).
Although the inquiring judge only about the propriety of a response by the judicial association on behalf of the criticized judge, the Committee takes the opportunity to give an overview of prior opinions discussing four possible sources of response to public criticism of a judge. To be clear, the Committee believes judges are not ethically required to respond to public criticism of their actions, even if the lack of a response may leave the public “with the impression of an abusive, callous, uncaring judicial system” (Opinion 94-22). Moreover, as noted above, judges must not permit public clamor or fear of criticism to influence their adjudicative decisions (see 22 NYCRR 100.3[B]). And, it may be wise, in some instances, not to dignify particularly outrageous accusations or criticisms with any response at all.
Response by the Criticized Judge
The Committee has advised that a judge “must expect to be the subject of public scrutiny and, therefore, must accept criticism, however merciless, that might be viewed as opprobrious by the ordinary citizen” (Opinion 92-13). 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” (Opinion 14-26), that is, “as long as any appeal or collateral proceeding in the case is pending or likely” (Opinion 10-206). 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’” (Opinion 14-26 [citation omitted]).
While a case remains pending or impending, a judge must not “seek to explain or justify his/her decision, as this would constitute impermissible public comment” on a pending or impending matter (Opinion 13-86 [noting that a judge “must allow the decision to speak for itself”]). Thus, the Committee has counseled against “any public statements by the judge about his or her criteria or actions in a particular instance” (Opinion 00-25). 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 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.).
Accordingly, the Committee has advised that a judge may not comment publicly about a pending matter, even to correct false, misleading and inaccurate public statements made by newspapers, litigants or others (see Opinions 08-135; 00-25; 94-22; see also Opinion 15-30 [“the fact that newspapers wrongly report cases does not create an exception to the public comment rule”]). Nor may the judge respond to a letter inquiring about the judge’s gun licensing standards and procedures by writing a letter stating his/her criteria, in the midst of an organized campaign against the judge relating to this issue (see Opinion 92-114/92-127).1
Once the time for appeals has been exhausted and no further or collateral proceedings are reasonably foreseeable, it may be permissible for a judge to respond; but, even then, the judge must proceed with extreme caution. The Committee has advised that a judge’s discussion of his/her own prior decisions in proceedings which are no longer pending or impending “should not go beyond the published decision” (Opinions 14-26; 90-67). In Opinion 92-13, the Committee advised that a judge may, subject to significant limitations, respond to a letter to the editor in a local newspaper in connection with a case that is no longer pending or impending (see Opinion 92-13). Specifically, the judge may write “to rectify ... procedural misconceptions” (id.), but 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” (id.).
Finally, where media criticism does not involve a specific pending or impending case, a judge may have greater latitude to respond. For example, where a local newspaper criticized a town judge’s “administrative abilities” relating to “the accounting for and reconciling of accounts involving fines received by the court,” the Committee advised that the judge “may respond to a newspaper article reporting criticism of the judge by various town officials for the manner in which the judge maintains accounts for fines received by the court” (Opinion 04-71). The Committee noted that the public comment rule permits the judge “to publicly explain the procedures of the court,” such as “the accounting of and reconciling of fees received by the court” (id.). The Committee emphasized that the judge’s response must be “strictly limited to the facts concerning the receipt of funds and the attendant accounting,” and strongly cautioned the judge “to craft the response in a way which does not personally attack any public official or other individual involved in the audit or article” (id.).
Response by a Judicial Association
The Committee has advised that a judges’ association “is held to the same standards as an individual judge” (Opinion 06-50 [restrictions on public comment rule and monetary contributions]; cf. Opinions 93-78 [restrictions on political activity and charitable fund-raising]; 97-97 [restrictions on intervening in judicial or administrative proceedings]). Thus, the restrictions on public comment on pending or impending cases, as discussed above, apply also to an association of judges (see Opinion 06-50; 22 NYCRR 100.3[B]). For example, a judicial association may respond by letter to a public statement by the Commission on Judicial Conduct relating to the administration of justice, as long as the response does not comment on any pending or impending matter (see Opinion 08-114). In Opinion 06-50 (citations omitted), the Committee advised that a judicial association:
May hire a public relations firm to improve the public’s perception of the judiciary and its function. Members and officers of the Association and the public relations firm acting on its behalf will be subject to the restrictions on public comment by judges, contained in the Rules Governing Judicial Conduct, however. This includes preclusion of any comment regarding pending or impending proceedings in any court within the United States or its territories. Therefore, the Association in general, and its officers in particular, are responsible for any activities or statements made by the public relations firm on behalf of the Association, and should therefore review and approve, in advance, any comments made or actions taken by the firm on behalf of the Association
Despite these restrictions, it may be more appropriate for a judicial association to reply to public criticism than for the directly affected judge to do so, provided that the response does not violate the public comment rule, because an association of judges is more likely to be able to see the circumstances objectively and prepare a dignified and appropriate response.
Response by the Office of Court Administration’s Communications Office
The Committee has previously advised that judges may contact the Office of Court Administration’s Communications Office [Contact: (212) 428 2500] for assistance in responding to media errors (see Opinion 15-30). Although a judge must require “similar abstention” from public comment on pending or impending matters in any court in the United States or its territories “on the part of court personnel subject to the judge’s direction and control” (22 NYCRR 100.3[B]), the Committee notes that the non-judicial court personnel of OCA’s Communications Office are not subject to the direction and control of trial level judges, such as the inquiring judge and the criticized judge in the present inquiry.2 The Committee anticipates that, through training and experience, OCA’s Communications Office is well-positioned to provide responses, to the extent appropriate and authorized in the applicable chain of command, to media criticism of the judiciary.
Response by a Bar Association
The Committee has previously advised that “response to media criticism is best provided by a bar association” (Opinion 92-13; see also Opinion 94-22). Thus, in Opinion 08-135, the Committee advised:
It is not improper for a judge to communicate with a voluntary bar association task force formed to respond to media criticism about judges that is perceived to be uninformed and unfair. And, it is the Committee’s view that the Rules Governing Judicial Conduct do not preclude a judge from providing the voluntary bar association with copies of publicly recorded documents in a case, such as a transcript of proceedings, to assist the task force in developing a response to media criticism. A judge also may meet privately with members of the bar task force to identify relevant aspects of the public record as long as the judge does not offer an analysis of the case or his/her opinions about the case and as long as the judge secures an agreement from the bar association to keep confidential any comments the judge makes during the private meeting (see 22 NYCRR 100.3[B]).
With respect to the specific question presented, the Committee concludes that the inquiring judge’s judicial association may respond to a newspaper article which criticizes another judge for making statements about a juror in a written decision, provided that the response does not involve impermissible comment on a pending or impending proceeding (see Opinion 08-114; 22 NYCRR 100.3[B]). If the judicial association determines that a response may be provided consistent with the public comment rule, the response must also be “objective and dispassionate in [its] commentary, so as not to detract in any way from the dignity of judicial office and to uphold the judicial process” (Opinion 92-13).
1A judge may, of course, issue written judicial decisions or a court rule “in the course of [his/her] official duties” which will appropriately explain his/her reasoning or criteria (see Opinion 92-114/92-127; 22 NYCRR 100.3[B]). A judge may also, without impermissible public comment, make public an ordinance pursuant to which he/she imposed fines which are the subject of public criticism (see Opinion 00-25).
2A publicly posted organizational chart suggests that the Communications Office reports directly to OCA’s Chief of Operations within the office of the Chief Administrative Judge (see http://www.nycourts.gov/admin/AdminStructure.pdf).