Opinion 16-135

October 20, 2016

Digest:         A judge may publicly advocate for a change in the Penal Law by writing to executive and legislative bodies and/or officials, as well as other potentially interested parties, subject to generally applicable limitations on judicial speech and conduct. The judge need not inform local prosecutors or defense counsel of these activities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(B); 100.4(C)(1); 100.5(A)(1)(iii); Opinions 13-189/14-02; 13-149; 13-17; 10-147; 09-166; 08-73; 06-34; 95-28.

Opinion:

         A full-time judge asks whether he/she may propose changes to the Penal Law to adopt a new standard in a particular class of criminal cases. The judge wishes to send letters advocating the change, on his/her own initiative, to the Governor, each member of the legislature, state agencies, and “other potentially interested parties.” The judge further asks if he/she must notify the public defender and district attorney of such activities “so they have an opportunity to let their views be known on the proposal.”

         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 may, subject to certain limitations, speak, write, lecture, teach and participate in extra-judicial activities (see 22 NYCRR 100.4[B]). Judges may also appear before an executive or legislative body or public official on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]), and may, subject to certain limitations, engage in limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (see 22 NYCRR 100.5[A][1][iii]).

         In prior opinions, this Committee has stated that a judge may directly contact state officials to express his/her views on matters involving the law, the legal system or the administration or justice (see Opinions 10-147 [a judge may actively and publicly advocate for or against a bill that would extend defendants’ rights]; 09-166 [a judge may lobby elected officials in support of a bill designed to improve prisoner healthcare]; 06-34 [members of a judges’ association may lobby the legislature and send a letter urging the passage of a bill that would benefit incarcerated domestic violence survivors]; 95-28 [a judge may, on his/her own initiative, directly contact the governor on a matter concerning the administration of justice]). The Committee also has advised that a judge may co-author an op-ed article supporting the passage of certain legislation concerning the law, the legal system or the administration of justice (see Opinion 13-149).

         While a judge may publicly express his/her views on matters concerning the law, legal system or administration of justice (see generally id.), he/she must also take care that his/her writing and advocacy do not compromise public confidence in his/her impartiality (see 22 NYCRR 100.2[A]). To that end, a judge must not insert him/herself “unnecessarily into the center of controversy, for example, by taking a position that is ‘so controversial that it is incompatible with judicial office’” (Opinion 13-189/14-02). The judge also must comply with generally applicable judicial speech limitations (see e.g. 22 NYCRR 100.3[B][6] [prohibiting ex parte communications]; 100.3[B][8] [public comment rule]), and avoid impermissible political activity (see e.g. Opinions 13-17; 08-73).

         The Rules Governing Judicial Conduct do not require a judge to provide any individuals or institutions with notice of, or an opportunity to respond to, his/her activities under section 100.4(C)(1). The Committee declines to impose such a requirement. Thus, the judge need not advise local prosecutors or defense counsel of his/her proposed changes to the Penal Law.

         In conclusion, this judge may publicly advocate for changes in the Penal Law by writing to executive and legislative bodies and/or officials, and other potentially interested parties, subject to generally applicable limitations on judicial speech and conduct. The judge need not inform local prosecutors or defense counsel of his/her proposal.