Opinion 17-152

October 19, 2017

Digest:     (1) A Family Court judge may inform children that the court is willing to display their artwork in public spaces and identify them by first name or initials and may personally solicit donations of children’s artwork for display in Family Court from local school teachers and/or children who have pending permanency hearings.

(2) The judge may personally send a thank-you note to a teacher or child who sends artwork to the court, but should copy all parties or their attorneys if the child is appearing before the court. Alternatively, the judge may direct the chief clerk to send a thank-you note on behalf of the court.

(3) Subject to any appropriate administrative approvals, the judge may direct the Family Court to (a) issue a press release about the court’s children’s art gallery and invite children to submit artwork; (b) invite the child artists, their families, and, if applicable, their attorneys, to an “opening” display of their artwork; and (c) accept the children’s artwork as gifts to the Unified Court System.

Rules:       22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.3(C)(1); 100.4(A)(1)-(3); Opinions 16-156; 15-93; 14-159; 12-135; 11-28; 09-167.

Opinion:

         The inquiring Family Court judge “speak[s] with children on a daily basis about their interests.”¹ As “many of these children are into the arts,” the judge wishes to encourage them “to pursue their passions” by displaying their artwork at the courthouse. The judge asks several detailed questions about whether and how he/she may establish a children’s art gallery at the courthouse.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally engage in extra-judicial activities that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s 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]). Of course, when engaging in extra-judicial activities, a judge must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and must not publicly comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).

Personal Solicitation and Acceptance of Children’s Artwork

         The judge asks if he/she may personally inform children “that the Family Court will display their artwork in public spaces provided it is appropriate and only a first name or initials are shown” and personally solicit donations of children’s artwork from local school teachers, or children who have pending permanency hearings, to display in the proposed children’s art gallery.

         Although a judge may not personally solicit either money or items of value, such as canned goods or eyeglasses, he/she may personally solicit and accept “drawings from children in the congregation” to be given as gifts in an educational and charitable outreach trip, “as this is not akin to the inappropriate solicitation of funds and is thus ethically permissible” (Opinion 12-135).

         Here, too, we believe the judge may personally solicit donations of children’s artwork from local school teachers and/or children who have pending permanency hearings, to display in the proposed children’s art gallery at the courthouse. The judge may likewise inform children during permanency hearings that the Family Court is willing to display their artwork publicly. Such communications are, of course, subject to all regularly applicable limitations on judicial speech and conduct (see e.g. Opinion 15-93).

Thank-You Notes for Children’s Artwork

         The judge also asks if he/she may personally send a thank-you note to a teacher or child who donated the art work. The judge stresses he/she would copy all parties or their attorneys if the child is appearing before the court. Alternatively, the judge asks if he/she may direct the chief clerk to send a thank-you note on behalf of the court.

         As the judge may personally solicit and accept children’s artwork for display in the courthouse, we believe the judge may personally send a thank-you note for the artwork he/she receives. The judge’s proposal to copy all parties or their attorneys if the child is appearing before the court is a sound and reasonable measure to discourage impermissible ex parte communications and avoid any possible appearance of impropriety (see 22 NYCRR 100.2[A]; 100.3[B][6]; cf. Opinion 16-156). As the judge may send the thank-you note directly, we also conclude he/she may direct the chief clerk to send a thank-you note on behalf of the court.

Formal Involvement of the Family Court

         The judge asks if he/she may have the Family Court (a) issue a press release “about the existence of a children’s art gallery on the walls of the Family Court inviting children to submit artwork,” (b) invite the artists, their families, and, if applicable, their attorneys to an “opening” display of their artwork, and (c) accept the children’s artwork as gifts, rather than as loans to be returned after a certain period.

         We have advised that a judge may accept a piece of artwork on behalf of the Unified Court System and display it in the courtroom after obtaining his/her administrative judge’s approval (see generally Opinions 09-167; 11-28). Moreover, while we assume the establishment of a children’s art gallery in the courthouse as stated in the inquiry, including press releases and a formal “opening,” will not unduly interfere with court business or the judge’s judicial duties (see 22 NYCRR 100.3[C][1]; 100.4[A][3]), we also believe the extent to which court resources may appropriately be used for this purpose is a question of administrative policy, rather than judicial ethics (see generally Opinion 14-159).

         Thus, subject to appropriate administrative approvals, we conclude the judge may direct the Family Court to (a) issue a press release about the children’s art gallery in the Court and invite children to submit artwork; (b) invite the child artists, their families, and, if applicable, their attorneys, to an “opening” display of their artwork; and (c) accept the children’s artwork as gifts to the Unified Court System.

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¹We understand these discussions arise in the context of child protective proceedings and other such matters, as opposed to juvenile delinquency or Persons In Need of Supervision proceedings.