Opinion 20-42

March 19, 2020

Digest:         Subject to generally applicable limits on judicial speech and conduct, a judge may publicly comment on the recently enacted bail reform legislation to identify perceived strengths and weaknesses and to suggest the legislature seek additional comments or testimony to improve the law. On these facts, given the controversial nature of the topic, the judge should not refer to his/her current or prior affiliation with a court committee or judicial association unless that entity authorizes him/her to do so.

Rules:          22 NYCRR 100.0(R)-(V); 100.2; 100.2(A); 100(3)(B)(6); 100.3(B)(8)-(9); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1)(iii); 100.5(A)(1)(d)-(f); Opinions 19-137; 19-135; 19-120; 18-78; 17-54; 16-135; 16-12; 15-61; 14-165; 13-189/14-02; 12-165; 12-31; 13-17; 08-73.

Opinion:

         A judicial hearing officer (JHO) asks if he/she may send a letter to the editor and legislative leaders about the recent bail reform legislation, either individually or on behalf of a court committee whose members are sitting and retired judges. The JHO would like to praise some features of the law, highlight certain perceived procedural deficiencies in its passage, identify some weaknesses in an area of interest to the court committee he/she heads, and stress the need for added input to improve the law.

         A judge or quasi-judicial official must always avoid any appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not publicly comment on a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]). 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]). Judges may also appear before an executive or legislative body or public official on matters concerning the law, legal system or the administration of justice (see 22 NYCRR 100.4[C][1]), and may engage in very 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]).

         A judge generally may publicly express his/her views on matters concerning the law, legal system or administration of justice (see generally id.). For example, a judge or judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or terms or conditions of judicial service by sending letters or editorials to newspapers, advocating in person or writing to public officials, testifying at public hearings and speaking at public or private forums (see Opinion 19-120) or 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 (see Opinion 16-135). We have also said a magistrates’ association may issue a resolution supporting or opposing “changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases,” and send it to local legislators and/or the press (see Opinion 18-78). We thus conclude this JHO’s chosen topic -- bail reform -- is one on which a judge or quasi-judicial official may publicly comment, notwithstanding its controversial nature, subject to all applicable limitations on judicial speech and conduct.

         As we previously observed, the Committee “is not in a position to review, edit or otherwise approve/disapprove” judges’ proposed writings (Opinion 16-12). Rather, “[i]t is [each judge’s] responsibility to decide whether [his/her] proposed statement complies with the guidelines previously set forth by this Committee, or whether [he/she] should further edit the statement to meet those guidelines” (id.).

         We therefore summarize several general principles from our prior opinions here, for ease of reference.

         First, a judge must take care that his/her writings 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). 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 (see e.g. Opinions 16-12; 12-31; 22 NYCRR 100.0[R]-[T]; 100.2[A]; 100.3[B][9]). Indeed, we’ve said a town justice may not write the town board stating his/her personal views that a new local law was poorly drafted and offering proposed amendments to solve the problem (see Opinion 19-137).

         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 (see 22 NYCRR 100.3[B][6] [ex parte rule]; 100.3[B][8] [public comment rule]; cf. Opinion 19-135 [town justice judge must not seek to convince the town board to adopt a policy concerning civil immigration arrests in the town court while a lawsuit concerning the legitimacy of such arrests in New York’s courthouses remains pending or impending]). 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 15-61; 22 NYCRR 100.0[U]-[V]).

         Third, a judge’s writings must comport with the dignity of judicial office and eschew personal attacks on government officials (see Opinions 17-54; 12-165). As we have observed in another context, “some judges find it helpful to pay particular attention to their use of adjectives and adverbs” (Opinion 14-165).

         Fourth, a judge must avoid impermissible political activity, such as “directly or indirectly” publicly endorsing or opposing a political organization or candidate (see e.g. 22 NYCRR 100.5[A][1][d]-[f]; Opinions 13-17 [judge may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative to garner statements of public support for the individual legislator]; 08-73 [judge may not form a Political Action Committee to advance and influence legislative initiatives affecting the courts and judiciary]).

         Finally, in this specific context, where the inquiring JHO wishes to write publicly on a legal topic that appears to be both critical to the law, legal system, and administration of justice and very controversial, we believe the JHO should not refer to his/her current or prior affiliation with a court committee or judicial association unless that entity authorizes him/her to do so.