Opinion 19-159

January 30, 2020


Digest:    A judicial association may not submit an amicus curiae brief in an Article 78 proceeding against an individual judge


Rules:     CPLR 7003(c); 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); Opinions 16-178;

              99-172; 98-77.


         The president of a judicial association asks if the association may submit an amicus curiae brief in an Article 78 proceeding where the petitioner sued a judge pursuant to CPLR 7003(c) seeking a $1,000 penalty for the judge’s failure to issue a writ of habeas corpus. The respondent judge is challenging the statute’s constitutionality in a motion to dismiss. The judicial association likewise wishes to argue that CPLR 7003(c) violates the constitutional principles of separation of powers and infringes on the independence of the judiciary - issues that impact the association’s members.

         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]).2

         In Opinion 99-172, the Commission on Judicial Conduct determined a particular judge should be removed from office for (among other things) “suggesting that attorneys should settle cases because the judge had other things to do” that evening (id.). At the Court of Appeals review, a judicial association wished to file an amicus curiae brief to express its concerns about restricting judges’ ability “to put pressure on attorneys to settle cases (id.).” We said it was “not improper for a judge’s association to seek to file an amicus curiae brief” with the Court of Appeals, “provided that the brief ... addresses an issue affecting the judiciary as a whole and not the particular circumstances of the judge” (id.).

         Much more recently, however, we said that “[a] judicial association may not submit an amicus brief to the Court of Appeals ... to express its members’ concern, as trial judges, about the practical effects of a recent Appellate Division decision” (Opinion 16-178). We stated that Opinion 99-172 should be limited to its facts, and further noted, quite pointedly, that it had not been cited or referenced in the 17 intervening years. Instead, we looked both to our more recent opinions concerning improper intervention in matters that are properly before other judges (see Opinion 16-178), as well as further back to Opinion 98-77, which advised it was “improper for a judge to write to the Appellate Division asking it to reconsider its decision in which it reversed a ruling in a proceeding before the judge.” In particular, we emphasized that “a judge should not adopt the role of an advocate,” and that “the letter could be regarded as a public comment about a pending proceeding and therefore barred under Section 100.3(B)(8) of the Rules” (Opinion 16-178, quoting Opinion 98-77). We concluded in Opinion 16-178 (quoting Opinion 98-77) that the proposed amicus brief would likewise be “advancing arguments on behalf of a party to the proceeding whose interests were adversely affected,” and accordingly taking on the “role of advocate.”

         Based on the foregoing, we conclude that the 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. We hereby overrule Opinion 99-172.

         Of course, our observation in Opinion 16-178, that the “clear alternative” to a judge/judicial association weighing in publicly on a pending case is to propose legislative changes, is likewise relevant here with respect to the association’s disagreement with CPLR 7003(c). Here, too, assuming it is possible to advocate for the desired statutory change without publicly commenting on an identifiable pending or impending case, proposing legislative changes would be “clearly relate[d] to the administration of justice” and therefore permissible (Opinion 16-178).2


1 Exceptions include “making public statements in the course of [a judge’s] official duties,” “explaining for public information the procedures of the court,” and “proceedings in which the judge is a litigant in a personal capacity.” Although we have not fully considered whether and how these exceptions might apply to a judicial association, none of them authorizes participation in litigation as an amicus curiae.

2 We note the inquiring judge’s stated concerns about CPLR 7003(c) - that it might violate constitutional principles of separation of powers and infringe on the judiciary’s independence - clearly relate to the administration of justice.