Opinion 20-136

September 10, 2020

Digest:         A judge may write and submit an opinion article to a legal publication outlining what the judge considers flaws in an instrument that judges are currently required to use to assess the potential risk of re-offense.

Rules:          22 NYCRR 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 20-42; 19-120; 16-12.

Opinion:

         A full-time trial-level judge asks about the ethical propriety of submitting an opinion article to a legal publication outlining what the judge believes are “significant flaws in the risk assessment instrument judges are required to use to assess sex offender risk under New York’s Sex Offender Registration Act.”¹

         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 lend the prestige of judicial office to advance any private interests nor permit anyone to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). In general, a judge may engage in extra-judicial activities if they are compatible 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]). When engaging in such activities, a judge must abide by all applicable limitations on judicial speech and conduct. For example, a judge 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][8]; see also 22 NYCRR 100.0[V] [an impending proceeding is one that is “reasonably foreseeable but has not yet been commenced”]).

         In Opinion 20-42, we said a judge may publicly comment on recently enacted legislation to identify perceived strengths and weaknesses and to suggest that the legislature seek additional comments or testimony to improve the law. We noted a judge “generally may publicly express his/her views on matters concerning the law, legal system or administration of justice,” subject to four key principles (id. [citations omitted]):

First, a judge must take care that his/her writings do not compromise public confidence in his/her impartiality. 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.’” Also, he/she must carefully consider whether his/her statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment on an issue or to parties that may appear before him/her or otherwise undermine public confidence in his/her impartiality and independence.

Second, a judge also must refrain from commenting on pending or impending proceedings in any court of the United States or its territories and avoid impermissible ex parte communications. As a reminder, the bar against public comment extends “at least until the time for appeals has expired and often longer,” such as when “a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding” is reasonably foreseeable.

Third, a judge’s writings must comport with the dignity of judicial office and eschew personal attacks on government officials.

Fourth, a judge must avoid impermissible political activity.

Likewise, we said a full-time judge “may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service” (Opinion 19-120) or “submit a written statement suggesting certain changes to New York’s statutory scheme” (Opinion 16-12). Indeed, where judges are permissibly sharing their views on matters concerning improvement of the law, legal system or administration of justice, they may so in a wide variety of venues and formats. For example, a judge may (a) write and submit letters, articles, or editorials to newspapers and other publications; (b) advocate in person or in writing to public officials, governmental bodies, and labor unions; (c) testify at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee (see Opinion 19-120).

         Accordingly, we conclude this judge may write and submit an opinion article to a legal publication outlining what the judge considers flaws in an instrument that judges are required to use to assess the potential risk of re-offense, subject to generally applicable limitations on judicial speech and conduct. As a reminder, “the bar against public comment extends ‘at least until the time for appeals has expired and often longer,’ such as when ‘a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding’ is reasonably foreseeable” (Opinion 20-42 [citations omitted]).

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¹ Despite the inquiring judge’s reservations about the risk assessment instrument, previously expressed on the record or in written decisions, the judge uses it as required by governing law.