Opinion 22-97

 

June 30, 2022

 

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may teach a law school clinic that will research and draft proposed legislation to create civil liability for encouraging, assisting or facilitating racially motivated crimes. A judge may also propose such legislation to legislators.

 

Rules:          22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(4)-(5); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(H)(2); 100.5(A)(1)(iii); Opinions 22-13; 21-182; 21-114(A); 21-81; 19-120; 17-18; 16-135; 16-60; 13-189/14-02; 13-149; 13-17; 10-147; 10-130; 09-166; 08-73; 07-170.

Opinion:

         

         A full-time judge asks if they may teach a law school clinic that will research and draft proposed legislation to create civil liability for encouraging, assisting or facilitating racially motivated crimes. In addition, the judge asks if they may propose such legislation to legislators.

         

         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 may engage in extra-judicial activities such as teaching, provided that such activities are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially; (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]; 100.4[B]). Also, a judge 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]).1 A judge may not, however, make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B][8]), including a proceeding “that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).

 

         In performing judicial duties, a judge “shall not, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” (22 NYCRR 100.3[B][4]), and must require similar behavior from lawyers in proceedings before the judge (see 22 NYCRR 100.3[B][5]) and from those subject to the judge’s direction and control (see 22 NYCRR 100.3[B][4]). Indeed, our “precedents make clear that judges may take affirmative steps to advance equity in a variety of contexts” (Opinion 22-13; see Opinions 21-182; 21-114[A]; 21-81; 07-170).

 

         We have advised that when judges are permissibly sharing their views on matters concerning improvement of the law, legal system or administration of justice, they may do 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) speak “at public or private forums, other than partisan political gatherings or meetings of a political party or committee” (Opinion 19-120). Of particular note, a judge may contact state officials to express their views on such matters (see e.g. Opinions 16-135; 10-147; 09-166) and may publicly support the passage of certain legislation concerning the law, the legal system or the administration of justice (see Opinion 13-149), subject to exceptions inapplicable here.2 Indeed, a judge may suggest that local legislators 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 (see Opinion 17-18).


         As this law clinic will research and draft proposed legislation that directly concerns improvement of the law, the legal system, or the administration of justice (see Opinion 21-81), we see no reason why the judge cannot teach such a clinic. We note that where a full-time judge receives compensation over $150 in a calendar year for their work as part-time law school professor, they must report this extra-judicial compensation to the clerk of the court as set forth in 22 NYCRR 100.4(H)(2).

 

         We also conclude that the judge may propose such legislation to legislators. However, in doing so, the judge must not comment on specific cases that are pending or impending in the United States or its territories (see 22 NYCRR 100.3[B][8]), nor make statements that cast doubt on the judge’s impartiality or indicate a predisposition to decide cases in a certain way (see e.g. 22 NYCRR 100.2[A]).

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1 For example, we have said a judge may not form a Political Action Committee (PAC) to advance and influence legislative initiatives that affect the courts and the judiciary (see Opinion 08-73) and may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator (see Opinion 13-17).

 

2 In some instances, we concluded the subject matter did not primarily involve the improvement of the law, the legal system, or the administration of justice (see e.g. Opinions 10-130 [judge may not meet with legislators concerning “safety standards and administrative reform in the sport of boxing” as “issues generated by such legislation may well be controversial, and such proposals will not concern the improvement of the law, the legal system or the administration of justice”]; 16-60 [judge may not join politically connected group to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring legislature, changes in school funding, and other highly controversial or political matters largely unrelated to the law, the legal system, and the administration of justice]; 13-189/14-02 [judicial association may not publicly support repeal of controversial gun control law in its entirety, but may publicly support repeal or amendment of specific statutory provisions which affect administration of justice]).