Opinion 22-37

March 10, 2022

Digest:    On these facts, an administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief.

Rules:     22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(G); Opinions 19-159; 16-178.

Opinion:

         The inquiring judge has certain administrative or supervisory responsibilities within the court system. A court-sponsored committee or commission, which includes both sitting judges and outside attorneys as members, has asked the inquiring judge for permission to file an amicus curiae brief in a pending case on an issue related to improvement of the law, the legal system, or the administration of justice. The inquiring judge notes that the position the court-sponsored entity wishes to take in the amicus brief directly supports the court system’s legislative agenda. The judge asks if it is ethically permissible to authorize the court-sponsored entity to file this amicus brief, where the brief “will be prepared and submitted by a special subcommittee ... that does not include any of the [entity]’s judicial members.” We note that the Unified Court System is neither a party nor an intervenor in this litigation, and the inquiring judge has not made a legal determination that he/she is legally authorized or required, as part of his/her official judicial duties, to seek to participate in the case in any capacity.

         A judge must 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 may not publicly comment about a pending or impending case in the United States or its territories, unless an exception applies (see 22 NYCRR 100.3[B][8]), and a full-time judge must not practice law (see 22 NYCRR 100.4[G] [noting that a judge may nonetheless “act pro se”]).

         In Opinion 16-178, a judge asked if a judicial association may submit an amicus brief to the Court of Appeals “to express its members’ concern, as trial judges, about ... the Appellate Division’s finding that there was no statutory authority for a judge to require a convicted defendant to pay for a particular alcohol monitoring device as part of his/her sentence,” where “the association believes there are strong policy reasons for trial judges to engage in this conduct in certain categories of criminal cases” (id.). We noted that such “policy-based arguments should be made to the legislature,” and emphasized that “on these facts, there is a clear alternative to the judge and judicial association weighing in publicly on a specific pending case: they may propose legislative changes” (id.).

         In Opinion 19-159, we went further and expressly overruled a prior opinion that had permitted a judicial association to file an amicus brief. We concluded that a judicial association “may not submit an amicus curiae brief to the trial court, as the association would be adopting the role of advocate, and its brief could be deemed public comment about a pending proceeding” (id.).

         Such concerns apply more strongly here, as the court-sponsored committee or commission in question does not appear to be a distinct legal entity that might potentially have standing to act on behalf of its own independent legal interests. Indeed, the activities of the committee or commission would readily appear to be those of its constituent members, even if a special subcommittee consisting solely of practicing attorneys submits the proposed amicus brief. Moreover, as the amicus brief contemplated here is in support of the court system’s legislative agenda, it is also worth reiterating our earlier comment that proposing legislative changes directly is “a clear alternative” to “weighing in publicly on a specific pending case” (Opinion 16-178).

         Accordingly, on the facts presented, we conclude the inquiring judge may not authorize the court-sponsored entity to file an amicus brief.