Opinion: 99-172

December 9, 1999




Digest: Under the circumstances presented, it is not improper for a judge's association to seek to file an amicus curiae brief in the Court of Appeals with respect to the Court's review of a determination of the State Commission on Judicial Conduct that a judge should be removed from office, provided that the brief sought to be filed addresses an issue affecting the judiciary as a whole and not the particular circumstances of the judge.
 

Rule:  22 NYCRR 500.11; 100.2(C);
           Opinion 97-97 (Vol. XVI);
          Matter of Greenfield, 76 N.Y.2d 293 (1990).
 

Opinion:

            The State Commission on Judicial Conduct has rendered a determination that a judge should be removed from judicial office. The matter is now before the Court of Appeals for its review of the Commission's determination. In connection with that review a judge's association (on whose executive committee the judge in question serves), wishes to file an amicus curiae brief on behalf of the association. As stated by the president of the association:

Our main concern is with regard to certain charges in the formal written complaint. The particular charge we are most concerned with is comments suggesting that attorneys should settle cases because the judge had other things to do in the evening in question. We are not condoning what Judge _______ was found to have said, but our association is concerned about the ability or inability to put pressure on attorneys' to settle cases. We need to maintain the independence of the judiciary.


            In Opinion 97-97 (Vol. XVI), mentioned in the letter of inquiry, the Committee did not have before it a request concerning the propriety of seeking to file an amicus curiae brief in the Court of Appeals. Rather, the request was from a judge's association that it be permitted to "communicate with the Court of Appeals during its review of the State Commission's determination to express the association's views concerning a less severe sanction" than removal of one of its members and "to make public statements recommending that the judge not be removed." There was no mention in the inquiry or the Committee's opinion of submitting an amicus curiae brief, which, in any event, requires the permission of the Court of Appeals. 22 NYCRR 500.11.

            Advising against such a course of conduct, the Committee cited section 100.2(C) of the Rules Governing Judicial Conduct which provides that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . ." This section also provides that "[a] judge shall not testify voluntarily as a character witness." 22 NYCRR 100.2(C). The Committee went on to state that "[a]s a general matter, these rules prohibit judges from intervening without official solicitation, in judicial or administrative proceedings involving professional or criminal misconduct." Opinion 97-97 (Vol. XVI).

            Yet, as pointed out by the inquirer, a judicial association did submit an amicus curiae brief in Matter of Greenfield, 76 N.Y.2d 293 (1993), in which the Court of Appeals was reviewing a Commission determination that had censured a judge because he failed to render decisions promptly in a number of pending cases.

            We believe that the position of the Committee expressed in Opinion 97-97 (Vol. XVI) and the fact that a judge's association had earlier filed an amicus curiae brief in the Court of Appeals in a case involving judicial discipline are not inconsistent. As indicated above, the judge's association in Opinion 97-97 (Vol. XVI), was not seeking to file an amicus curiae brief. Instead, it wished to express its views, both to the Court of Appeals and to the public at large, solely with respect to whether one of its members should be removed from office. No issue of general import to the judiciary was being raised, formally in an amicus curiae brief, or otherwise. In Matter of Greenfield, 76 N.Y.2d 293 (1990), however, as the synopsis of the amicus curiae brief reported at 76 N.Y.2d 294 indicates, the judge's association raised a legal question of substantial significance concerning the judiciary, i.e. whether in the absence of judicial corruption or other malfeasance, the State Commission on Judicial Conduct had "jurisdiction to discipline judges for mere delay in deciding matters." 76 N.Y.2d at 294. Clearly, such a question raised an important issue that extended beyond the particulars of the case before the Court.

            Thus, while it is quite true that the acceptance by the Court of the kind of proposition being advanced in Greenfield could inure to the benefit of the judge whose matter was being reviewed, that fact alone should not generally bar a judge's association from seeking to bring to the Court's attention a significant issue that may have ramifications extending beyond the circumstances of that particular judge. It is axiomatic that judges can not be partisans of other judges. But, we are of the view that what is being proposed herein does not, on its face, constitute an impermissible "intervening without official solicitation" in a judicial proceeding on behalf of the respondent-judge. This presumes that the association recognizes the responsibility of avoiding partisanship on behalf of the judge and that its brief is therefore confined to matters bearing directly upon the functioning of the judiciary as a whole. Accordingly, in our opinion, it is not improper for the inquiring judge's association to seek to file an amicus curiae brief if it seeks to address questions present in the particular case before the Court of Appeals that involve the functioning of the judiciary in the settling of cases.

            Nothing contained herein is intended to express an opinion concerning the determination of the Commission or the issues presented in the matter or whether leave to file an amicus curiae brief in the Court of Appeals should be granted.