February 9, 2016
This responds to your inquiry (16-12) asking whether it is ethically permissible to submit a written statement suggesting certain changes to New York’s statutory scheme, in lieu of appearing at a public hearing.
In general, it is ethically permissible for a judge to appear before a legislative body on matters concerning the law, the legal system or the administration of justice (22 NYCRR 100.4[C]), and the Committee concludes that you may do so in person or in writing, provided your comments comply with all applicable limits on judicial speech.
For example, a judge is prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories (22 NYCRR 100.3[B]). In addition, you must also carefully consider whether your statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment with respect to an issue or to parties that may appear before you; or otherwise undermine public confidence in your impartiality and independence (see e.g. 22 NYCRR 100.0[R]-[T]; 100.3[E][f]).
Although you have attached a copy of your lengthy proposed statement for the Committee’s review, the Committee has previously indicated that it is not in a position to review, edit or otherwise approve/disapprove such texts. It is your responsibility to decide whether your proposed statement complies with the guidelines previously set forth by this Committee, or whether you should further edit the statement to meet those guidelines.
Enclosed, for your consideration, are Opinions 15-48; 14-165; 12-165; 09-105; and 06-34 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)