This online version of the Judicial Speech Primer is based on the original issued on March 29, 2018 by the New York State Advisory Committee on Judicial Ethics. The substance has not been modified or updated since 2018. The format has been modified for publication online, and information about how to (a) contact the Committee and (b) search the Committee's opinions has been omitted as unnecessary for those already exploring the Committee's website.
FOREWORD
1. Introduction and General Principles
2. Public Comment on Pending or Impending Cases
2.1 Rule 100.3(B)(8)
2.2 When Is a Proceeding “Pending or Impending”?
2.3 What Can a Judge Say About a Pending or Impending Case?
3. Ex Parte Communications
3.1 Rule 100.3(B)(6)
3.2 Minimizing the Risk of Impermissible Ex Parte Communications
4. Accepting Speaking Engagements
4.1 Discussing Your Own Cases and Recent Judicial Decisions
4.1.1 Is the Case Currently Pending Before You?
4.1.2 Are Further Proceedings Reasonably Foreseeable In Any Court?
4.2 Question-and-Answer Sessions
4.3 Speaking to a One-Sided Audience
4.4 Teaching a Regular Course of Study at College, University or Law school
4.5 Caution: Inquiry About Purpose and Sponsor of the Event
5. Attending Lectures and CLE Programs
6. Quick Reminder for Judges on Fund-Raising and Political Activity
FOREWORD
The Advisory Committee on Judicial Ethics
In 1987, the Committee was formed to help New York State judges and justices adhere to the high standards set forth in the Rules. In 1988, the legislature codified the Committee’s creation in Judiciary Law §212(2)(l), which provides that whenever a judge acts in accordance with an advisory opinion of the Committee, that act is “presumed proper” for purposes of any subsequent investigation by the New York State Commission on Judicial Conduct. Since then, the Committee has issued between 100 and 250 formal opinions annually in response to questions from judges and justices about the propriety of their own political and other activities. Those opinions set forth the Committee’s interpretations of the Rules regulating political activities of judicial candidates, providing guidance for circumstances not specifically governed by a particular rule.
The Judicial Speech Primer
To help make the Committee’s judicial speech opinions readily available to those who need them most, we have summarized selected opinions for this Primer. We have called it a “Primer” because is not as extensive as a “Handbook,” and only attempts to summarize some elementary principles. Thus, although the included opinions address some common questions, the Primer is not intended to be an exclusive source for guidance on this subject. There is no substitute for seeking written guidance from the Committee on matters that are not squarely addressed in a black-letter rule or opinion.
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It is our hope that judges will seek and follow guidance from the Committee, in order to reduce the risk of public criticism and to promote public confidence in the judiciary.
Acknowledgments
This primer was prepared at the request of co-chairs Hon. Margaret Walsh and Hon. George Marlow. (Date: March 29, 2018)
1. Introduction and General Principles
The Rules Governing Judicial Conduct are intended, in large part, to promote public confidence in the judiciary’s impartiality, integrity, and independence. As the Court of Appeals stated (Matter of Raab, 100 NY2d 305, 313 [2003] [footnote and paragraph breaks omitted]):
litigants have a right guaranteed under the Due Process Clause to a fair and impartial magistrate and the State, as the steward of the judicial system, has the obligation to create such a forum and prevent corruption and the appearance of corruption, including political bias or favoritism. The importance of these fundamental precepts in maintaining public confidence in the judicial system is firmly established: “the State has an overriding interest in the integrity and impartiality of the judiciary...”
As a result, an individual who assumes judicial office is expected to observe many limits on his/her speech and conduct that may not apply to other citizens, in order to avoid both actual impropriety and its appearance. This Primer is intended to provide a starting point for understanding some of the most common limitations on judicial speech. However, we do not here address participation in public advocacy activities, where the outcome is often highly fact-dependent (see e.g. Opinions 13-189/14-02; 13-178; 17-38).
The following summary from Opinion 15-93 (footnotes omitted) provides an overview of topics that will be discussed in more detail herein:
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The judge’s participation [as a speaker] is, of course, subject to all applicable limitations on judicial speech and conduct, including the public comment rule and the prohibition on impermissible ex parte communications as well as the need to avoid even the appearance of impropriety (see 22 NYCRR 100.2[A]; 100.3[B][6], [8]).
For our readers’ convenience, we herein reiterate some general reminders and guidance on these principles in the context of the present inquiry.
A judge must take care that his/her remarks do not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A]). For example, in Opinion 13-140, the Committee advised that, when addressing a civilian complaint review board on the law of search and seizure and arrest procedures, a judge
- should take particular care if asked to comment on police-citizen encounters and relations. The judge should strive to avoid unnecessary speculation about possible attitudes, behaviors, or motivations of either the police or citizens, which could undermine the judge’s appearance of impartiality. Likewise, the judge should seek to avoid the appearance that he/she is providing partisan advice on how or when to prosecute police officers, or on how citizens should interact with the police
(Opinion 13-140 [citations omitted]).
A judge may describe generally applicable rules and procedures, and may comment generally on the administration of justice, but must not “editorialize” or otherwise comment on any pending or impending cases within the United States or its territories (see Opinions 13-140; 13-09/13-52; see also 22 NYCRR 100.3[B][8]). 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][8]).
While the Committee “has recognized that in teaching courses of study at a law school or college, it may be inevitable that some comment might have to be made on a pending case” in another jurisdiction, the Committee has strictly limited this exception “to those situations where the judge is a teacher of a regular course of study” (Opinion 11-77). Thus, the exception does not apply when “participating in panel discussions about current trends in the law” (id.), as the inquiring judge plans to do.
In order to avoid any possible appearance that the judge is permitting others to subject him/her to improper ex parte communications, the judge should discourage any discussion of a case that is currently pending before the judge (see 22 NYCRR 100.2; 100.3[B][6]). A judge may refer to his/her own previous decisions, provided the matter is no longer pending or impending, but the discussion should not go beyond the published decision (see Opinion 14-26).
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The rest of this Primer is intended to explore these issues further.
2. Public Comment on Pending or Impending Cases
The ban on public comment is broadly construed, and there is no exception allowing otherwise impermissible comments in order to counteract public criticism and/or inaccurate statements made by a litigant or the media (see e.g. Opinions 15-100; 15-30; 94-22).
2.1 Rule 100.3(B)(8)
A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control. This paragraph 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. This paragraph does not apply to proceedings in which the judge is a litigant in a personal capacity.
2.2 When Is a Proceeding “Pending or Impending”?
Recently decided cases 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). In Opinion 10-206 (volume numbers omitted), we explained:
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; 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 [judge may not publicly comment on portions of a pending matter that have become moot as long as the case itself remains pending]).
Applying these principles, we advised that a judge must not “publicly discuss any aspect of [a] high-profile criminal prosecution which, although technically closed, has now resulted in civil litigation in federal court. This prohibition lasts as long as the related civil litigation is pending or impending” (Opinion 10-206).
2.3 What Can a Judge Say About a Pending or Impending Case?
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.).
When providing an overview of a legal topic in a lecture (Opinion 13-140), we have advised:
[M]inimal 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.
3. Ex Parte Communications
To avoid both the appearance and the reality of impropriety, judges must avoid impermissible ex parte communications concerning a “pending or impending” case before them. Perhaps the gravest danger is “entirely unmonitored and unaccountable” input to the judge (Opinion 16-140), which cannot be timely contested or counteracted by the disadvantaged side.
3.1 Rule 100.3(B)(6)
A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, [unless an exception applies].
3.2 Minimizing the Risk of Impermissible Ex Parte Communications
In Opinion 16-155, the Committee discussed how to minimize the risk of inadvertent exposure to impermissible ex parte communications. Although the opinion focuses on the risk of a relative who seeks to involve him/herself in a case before the judge, the underlying principles apply in other contexts as well:
The remaining issue is the risk that the judge’s relative will expose the judge to impermissible ex parte communications at family functions. The Committee has recognized that judges cannot control the conduct of third parties. Thus, a judge’s obligation is generally to “discourage any discussion of a case that is currently pending before the judge” (Opinion 15-93 [emphasis added]). In the Committee’s view, this judge has already done so by sending a letter advising his/her relative not to discuss the case or the defendant in his/her presence.
Nor must the judge eschew family gatherings merely because there is a possibility that the judge’s relative may try to discuss one of the judge’s cases. Indeed, a judge may attend a fund-raising dinner for a non-profit organization whose volunteers sometimes accompany complaining witnesses in domestic violence cases before the judge (see Opinion 14-41). However, “to avoid any possible appearance of impropriety, such as the appearance that the judge is permitting others to subject him/her to improper ex parte communications, the judge should absent him/herself if there is any discussion of a case that is currently pending before the judge” (id.). Here, too, if the judge finds he/she cannot reasonably dissuade or discourage his/her relative from discussing the case near him/her at a family function, the judge may move to another room or take other reasonable steps to dissociate him/herself from the conversation.
Moreover, the judge need not necessarily disclose a brief, non-substantive ex parte communication from his/her relative which alleges no relevant facts and which the judge will not consider in deciding the case. In Opinion 15-106, an attorney accosted a judge at a bar association function while he/she had a case before the judge. The “judge attempted to discourage the attorney from speaking to him/her, and the attorney stated that he/she knew the appropriate parameters. The attorney soon engaged another nearby attorney in conversation, mentioning his/her recent appearance before the inquiring judge and praising the judge’s handling of bench conferences” (id.). The Committee concluded disclosure was not required (id.).
Finally, the Committee notes that an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides.
4. Accepting Speaking Engagements
In general, a judge may speak on legal topics to a wide variety of audiences, subject to generally applicable limitations on judicial speech and conduct. This is especially true when the event is organized by a bar association, college or law school. For example, a judge may serve as a panelist in a local college’s program on perceptions and realities of the criminal justice system, subject to generally applicable limitations on judicial speech and conduct (see Opinion 15-93).
4.1 Discussing Your Own Cases and Recent Judicial Decisions
4.1.1 Is the Case Currently Pending Before You?
The Commission on Judicial Conduct has taken the position that the public comment rule “is clear and unequivocal,” and thus “[i]t is wrong for a judge ‘to make any public comment, no matter how minor, to a newspaper reporter or to anyone else, about a case pending before him’” (2000 Ann Rep of NY Commn on Jud Conduct, at 135).
The Commission has censured a judge for giving media interviews about his own pending case, even though the judge “often responded to the reporters’ questions about [that] case with general statements about procedures and the legal system” (2018 Ann Rep of NY Commn on Jud Conduct, at 208). According to the Commission, the judge “should have recognized that any statements he made in that context would be understood as pertaining to [that case] and therefore were problematic” (id.). Moreover, the Commission concluded the judge’s statements “went well beyond general explanations of the law,” because he “discussed legal issues in the case,” “provided a description of his interactions with the jury and his sense of the jury's deliberations,” and described “the defendant as a ‘sympathetic’ figure” (id.).
The Commission has also censured a judge for lecturing about his own pending case, even though the judge “prefaced his speech by stating that he was not addressing any particular case” and did not mention it by name (1999 Ann Rep of NY Commn on Jud Conduct, at 79). The facts, though extreme, are worth noting (id.):
At a time when one of the first prosecutions under the state’s new capital punishment statute was pending before him, respondent gave a speech to an assembly of police officials that cast reasonable doubt on his ability to be impartial in the case. He criticized the Capital Defender Office appearing in the case, talked of the difficulties of bringing prosecutions under the new statute and disparaged the defense bar in general for asserting constitutional protections that respondent trivialized as “technicalities.” …
Given the high profile of the [case before him], respondent did not need to mention it by name. His disclaimer that he was not speaking about any particular case was a mockery; he knew that he had been invited to speak because the police chiefs wanted to hear about [that case] and the death penalty.
He compromised the proper administration of justice by making such remarks, knowing that claims of bias and adverse pre-trial publicity were already issues in the case.
4.1.2 Are Further Proceedings Reasonably Foreseeable In Any Court?
A judge may not participate in a panel discussion about his/her recent decision, when the time to appeal has not expired, as the occasion would call for impermissible public comment by the judge; the appearance of impropriety is heightened where an attorney who argued the case before the judge is a fellow panelist (see Opinion 15-61).
Once the time for appeal has expired and the matter is no longer “pending or impending” (see supra section 2.2), the judge may discuss his/her own prior decisions, “but the discussion should not go beyond the published decision” (see Opinion 15-93).
4.2 Question-and-Answer Sessions
A full-time judge may not practice law (22 NYCRR 100.4[G]), but may speak to laypersons about legal issues and engage in a question-and-answer session (Q&A) afterward (see generally Opinions 17-148; 13-116). Of course, any such give-and-take with the audience may carry some risks, as noted in Opinion 13-116 (citations omitted):
Throughout the presentation, and particularly if the judge participates in a question-and-answer session, the judge must be careful not to comment on pending or impending cases; must avoid providing trial strategy or legal advice; and must otherwise ensure that his/her presentation does not compromise the judge’s apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way.
As at other times, the judge must 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][1]). Still, while the same principles apply to the Q&A as to the underlying lecture, it may be helpful to consider and anticipate the kinds of questions that may arise in particular contexts, and seek guidance in advance if you are uncertain how you should address them. For example, where a judge planned to address a civilian complaint review board on the law of search and seizure and arrest procedures, we noted certain types of questions and issues that might arise during Q&A (Opinion 13-140 [citations omitted]):
Finally, the inquiring judge should take particular care if asked to comment on police-citizen encounters and relations. The judge should strive to avoid unnecessary speculation about possible attitudes, behaviors, or motivations of either the police or citizens, which could undermine the judge’s appearance of impartiality. Likewise, the judge should seek to avoid the appearance that he/she is providing partisan advice on how or when to prosecute police officers, or on how citizens should interact with the police.
4.3 Speaking to a One-Sided Audience
We have observed that “[f]requently, the simplest way for a judge to avoid any possible appearance of impropriety when he/she is invited to teach for one ‘side’ is to ask the sponsor of the event to invite the other ‘side’ to attend” (Opinion 12-44). Still, even “if the sponsor is unwilling or unable to invite a general audience,” a judge may in many circumstances be able to participate (id.). Of particular note (id. [citations and original brackets and ellipses omitted]):
When the audience is not a “general” or “balanced” audience but, instead, comprises only one “side,” a judge must take particular care that his/her topic will not compromise the judge’s apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way. As a result, the Committee has advised that in such situations, a judge must “exercise caution to avoid the perception that the judge is providing advice on litigation strategy or tactics.” In particular, “a judge must not be perceived as giving what amounts to partisan advice on questions of strategy or tactics as to how the lawyer is best likely to succeed in such cases on behalf of their particular clients[,] especially if cases involving the very subject matter of the programs are likely to come before the judge.”
4.4 Teaching a Regular Course of Study at College, University or Law school
This is summarized in Opinion 13-82 (volume numbers omitted):
The Committee has carved out a well-established but very narrow exception to the public comment rule when a judge is teaching a regular course of study at a law school or college (see Opinions 12-126; 10-189; 95-105; see also Opinions 11-77 [noting that “this exception has been strictly limited to those situations where the judge is a teacher of a regular course of study,” and does not apply to CLE programs]; 01-03 [the exception does not apply to a panel discussion at a national conference on the jury system]).
When the exception applies, the Committee has consistently advised that commenting on cases pending in other jurisdictions may be unavoidable and is permissible (see Opinions 12-126; 10-189; 95-105). However, a judge must nonetheless “refrain from making gratuitous and unnecessarily controversial statements about pending cases” (Opinions 10-189; 95-105) and must “avoid any discussion of cases pending within the general jurisdictional locale of the judge's court and the college campus” (Opinion 95-105; see also Opinions 12-126; 10-189).
4.5 Caution: Inquiry About Purpose and Sponsor of the Event
Judges should be aware of the limits on their participation in fund-raising, political activity, and (if a full-time judge) commercial or business activities.
- Before accepting a speaking engagement for a not-for-profit organization, the judge should find out whether it is a fund-raising event, whether through advance ticket sales or through activity at the event (see e.g. Opinions 15-154; 14-193; 22 NYCRR 100.4[C][3][b][ii]; see also infra section 6).
- If the speaking engagement may involve a political candidate, political club, or other political organization, the judge should make further inquiry to determine the nature of the event and the identity of the sponsor (see e.g. Opinion 88-136; 22 NYCRR 100.5[A][1][g], [i]; see also infra section 6).
- If the speaking engagement may involve a business entity, or involves compensation of the judge based on the number of attendees, a full-time judge should make further inquiry about the nature of the event and the identity of the sponsor (see e.g. Opinions 16-34; 15-202; 100.4[D][3]).
5. Attending Lectures and CLE Programs
In general, a judge may attend a wide variety of legal lectures and CLE programs, especially when a bar association is involved.
However, if a speaker discusses “a case that is currently pending before the judge,” we recommend the judge absent him/herself “to avoid any possible appearance of impropriety, such as the appearance that the judge is permitting others to subject him/her to improper ex parte communications” (Opinion 14-41).
6. Quick Reminder for Judges on Fund-Raising and Political Activity
As a reminder, judges must “not personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). The ban extends to soliciting money or in-kind donations from friends, neighbors, acquaintances, lawyers, court employees, court users, or the public.[FN1]
A judge also “may not be a speaker or the guest of honor at an organization’s fund-raising events” (22 NYCRR 100.4[C][b][ii]), except for “a court employee organization, bar association or law school function” (id.).
At all other organizations’ fund-raisers (including fund-raisers for colleges), the judge must not be “a speaker or the guest of honor,” but may accept “an unadvertised award ancillary to the event” (id.). The judge’s name must not be announced in advance or mentioned in any advertisements or invitations to the event; in essence, it should be a surprise to the attendees when, in addition to all the announced, featured guests, the judge also is briefly called up to accept an award (see e.g. Opinions 11-37; 05-42; 04-141).
Judges also must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]). Among other limitations, a judge may not be a member of any “group whose principal purpose is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M] [defining “political organization”]; 100.5[A][1][b]; Opinions 17-70; 15-210; 14-117). Judges also must not attend political events (see 22 NYCRR 100.5[A][1][g]), make political contributions (see 22 NYCRR 100.5[A][1][h]), or purchase tickets to politically sponsored events, even for a non-political purpose (see 22 NYCRR 100.5[A][1][i]).
Footnote
[FN1] However, judges may solicit funds from family members or other judges who are not subject to their supervision or appellate authority (see Opinions 16-153; 15-171).
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