Opinion 21-89

June 17, 2021

Digest:       A judge may complete a survey from the local social services agency concerning the number of eviction petitions, proceedings and warrants filed or pending in the judge’s court, so that the agency can assess the likely impacts of lifting a moratorium on evictions, but such participation is voluntary and entirely in the judge’s discretion.

Rules:        22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(8); Opinions 18-132; 10-131; 07-124.

Opinion:

           A judge asks if it is ethically permissible to respond to a survey from a county department of social services concerning the impact of lifting a moratorium on evictions. The agency plans to use the survey responses to help “gauge the potential need for emergency housing in communities when New York State lifts the ongoing eviction moratorium.” The survey contains the following five questions:

           •    What [local] jurisdiction do you represent?

           •    How many eviction proceedings are pending in your court?

           •    How many [eviction] proceedings have been stayed in your court due to the statewide eviction moratorium?

           •    How many eviction petitions have been filed in your Court from April 1, 2020 through April 1, 2021?

           •    How many eviction warrants have been ordered in your Court from April 1, 2020 through April 1, 2021?

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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 also 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]). A judge must not lend the prestige of judicial office to advance any private interests; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         In Opinion 18-132, we said a judge may participate in an interview with a not-for-profit entity retained by the county legislature to make recommendations concerning jail overcrowding, subject to generally applicable limitations on judicial speech and conduct. We have also said that courts may accede to requests for information or statistics regarding a court’s operation but must refrain from commenting on pending or impending cases (see Opinion 07-124). Likewise, we said that a judge may answer survey questions and participate in a follow-up interview concerning “Justices’ Perspectives on the Changes in Their Courts,” with the same caveats (see Opinion 10-131).

         Here, too, we believe the nature and scope of the survey does not impinge on the court’s authority or independence and the individual questions elicit essentially statistical information about the court’s operations or caseload rather than impermissible comment on specific proceedings.

         Accordingly, we conclude that the inquiring judge may voluntarily complete the proposed survey, at the judge’s discretion.