Opinion 20-198

January 28, 2021

Digest:         A town justice may suggest that the town board amend the local leash law to include an additional, alternative sanction for violations of the ordinance, that would allow the court to order defendant dog owners to confine their repeat offender dogs in a manner that will prevent future violations.

Rules:          22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1), (3); 100.4(C)(1); Opinions 20-136; 19-137; 18-78; 17-18; 16-135; 16-78; 14-139; 13-189/14-02; 10-130; 08-09; 92-50.

Opinion:

         A town justice who presides in cases involving alleged leash law violations has determined the court cannot legally order defendant dog owners to confine their repeat offender dogs, because the applicable town ordinance only authorizes the court to impose a fine for violations. Thus, when a defendant is adjudged in violation of the leash law, the judge has no discretion to order the dog to be confined, even if the evidence establishes the dog has a history of aggressive behavior or biting children when unleashed. Accordingly, the judge asks if they may suggest that the town board amend the law to include an alternative sanction that will empower the court to order defendant dog owners to confine their repeat offender dogs in a manner that will prevent future violations.

         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’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and thus a judge’s extra-judicial activities must not cast reasonable doubt on their capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][3]). 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”]), but may explain the court’s procedures for public information (see 22 NYCRR 100.3[B][8]). A judge also may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]).

         We believe the inquiring judge may suggest that the town board amend the local leash law to include an additional, alternative sanction for violations of the ordinance, as this goes to the sentencing power and/or jurisdiction of the court itself (see e.g. Opinions 17-18; 18-78; 16-135; 92-50). In doing so, of course, the judge must not comment on any pending or impending proceeding, including one where the time for appeals has not yet expired. However, we write at length here to discuss and clarify the applicable principles.

         As we have recognized, a judge “generally may publicly express his/her views on matters concerning the law, legal system or administration of justice,” subject to a few “key principles” such as maintaining public confidence in the judge’s impartiality, adherence to the public comment rule, and the need to maintain the dignity of judicial office, eschew personal attacks on government officials, and avoid impermissible political activity (Opinion 20-136 [citation omitted]). The fact that a judge has experience with a statute in their judicial capacity is not necessarily a bar, provided they carefully comply with such restrictions. Indeed, in Opinion 20-136, we said a judge who regularly used a risk assessment instrument “as required by governing law” (albeit with serious reservations frequently “expressed on the record or in written decisions”) may also publish an article “outlining what the judge considers flaws in [that] instrument.”

         Thus, for example, we have advised that a town justice may suggest that the town board amend a penal statute “to include a potential jail sentence so that, for alleged violations after the effective date, the court may issue an arrest warrant to produce recalcitrant defendants” (Opinion 17-18). Likewise, a magistrates’ association may publicly support or oppose changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases (Opinion 18-78). Judges may also “propose changes to the Penal Law to adopt a new standard in a particular class of criminal cases” (Opinion 16-135); “seek a change in the law that would enable more non-relative victims of domestic violence to obtain civil orders of protection in Family Court” (Opinion 08-09); and opine “on whether the judge’s court should have jurisdiction over proceedings concerning parental notification for minors seeking abortions,” and its likely effect on court congestion and other matters pending in the court (Opinion 92-50).

         The principle is not without limitations. Virtually every aspect of modern life is governed by some law or regulation; that does not mean that a judge may speak on every imaginable topic merely because a law is involved. Clearly, a judge may generally comment on how a proposed change in the law will affect the courts (see e.g. Opinions 16-78 [comment on how proposed change to local speed limit will undermine public confidence in the courts]; 14-139 [comment on how proposed transit changes will affect indigent court users and their ability to comply with court-ordered training, treatment, and probation]; 13-189/14-02 [comment on a specific gun control provision, re-registration requirements for sitting judges, which affects the administration of justice]). But in some instances, where a proposed change in the law does not have a sufficiently strong and evident connection with improvement of the law, the legal system or the administration of justice, we have said it is impermissible for a judge or judicial association to comment on it, especially if it is likely to be controversial (see e.g. Opinions 10-130 [laws and regulations related to boxing]; 13-189/14-02 [repeal of gun control law in its entirety]).

         Finally, we address our Opinion 19-137, which likewise involved a local justice who wished to comment sua sponte on a local law which would regularly come before the justice court. We note that it is not inherently improper for a local justice to do so (see e.g. Opinion 17-18). In Opinion 19-137, the inquiring judge believed “a recently enacted local law ‘was poorly written’” and wanted to “write the town board expressing this view ‘as a private citizen’ and offer ‘possible solutions to the problem.’” That is, in essence, the judge sought to provide unsolicited editing or drafting assistance on a “recently enacted” law. On those facts, we concluded that the judge’s “proposed role - intervening to re-write a law he/she finds problematic - would blur the line between judicial and legislative functions and could raise questions about the judge’s ability to be fair and impartial” (id.). From the outset, one key difference here is that, unlike Opinion 19-137, it is this judge’s prior judicial experience in presiding in matters involving this town ordinance that has caused the judge to recognize an apparent deficiency in it. There is, we believe, no danger that this judge’s proposed substantive change, offered from a uniquely judicial perspective, can be seen to blur the lines between judicial and legislative functions. On further consideration, we note that Opinion 19-137 involved a perhaps unusual set of facts, and we draw attention to the concluding paragraph, emphasizing that “our present opinion leaves unchanged the general principle that the ethics rules ‘broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice, and … participation in such activities is to be encouraged’” (id. [citations omitted]).