Opinion 16-178

January 26, 2017

Please Note: Although it does not affect the outcome of the present opinion, we note that Opinion 99-172 was subsequently overruled by Opinion 19-159.


Digest:         A judicial association may not submit an amicus brief to the Court of Appeals in a pending appeal to express its members’ concern, as trial judges, about the practical effects of a recent Appellate Division decision that trial judges lack statutory authority to take a particular action in connection with sentencing. The judicial association and/or individual judges may instead propose changes to applicable statutes which affect sentencing procedures in their courts. However, if it is not possible to advocate for the desired statutory change without publicly commenting on a specific, identifiable case, they must wait until the case is completely resolved.


Rules:          22 NYCRR 100.(U), (V); 100.2; 100.2(A); 100.2(C); 100.3(B)(6)(c); 100.3(B)(8); 100.3(C)(1); 100.4(C)(1); 100.4(G); 100.5(A)(1)(iii); Opinions 15-100; 15-50; 14-26; 13-189/14-02; 12-96; 12-18; 10-175; 05-71; 99-172; 98-77; 97-97; 88-159.


         A judge asks if a judicial association may submit an amicus curiae brief to the Court of Appeals in a pending appeal to express its members’ concern, as trial judges, about the practical effects of a recent Appellate Division decision in their courts. Specifically, the association wishes to comment on 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. The judicial association is concerned this holding could “undermine [a] criminal court’s authority to require defendants to pay for other devices and programs known to protect public safety and enable [defendants] to live productive law-abiding lives.”

         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 integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) and 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]; see also e.g. Opinion 15-100 [discussing the rule’s extensive reach]).1 Nonetheless, a judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice or when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]).

         In general, a judge may not interject him/herself into a pending proceeding except at the request of an appropriate agency or the tribunal, or as permitted by applicable rule or law2 (see e.g. Opinions 15-50 [a judge must not, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant’s case in the other court]; 10-175 [a judge who receives a letter from another judge in support of an application that is pending in the receiving judge’s court, under circumstances indicating the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct]; 05-71 [a judge whose property was burglarized may not contact the judge presiding over the case of a defendant accused of similar crimes “for the purpose of conveying information concerning other criminal acts allegedly committed by the defendant”]; 88-159 [“A judge should not, on his own initiative, volunteer information or suggestions to influence another judge in sentencing a defendant.”]). Thus, the Committee has advised that a Family Court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children; meet with agency caseworkers, educators, attorneys, and parents to advise them about specific rights and services that may be available to these children under the Education Law; and collaborate with them on ways to improve the children's school attendance. As the Committee explained (Opinion 12-18):


the judge proposes to intervene unilaterally in matters that are properly before other judges or that may properly come before other judges and advise numerous stakeholders (including educators and parents) about the legal rights of specific children in foster care. This would impermissibly interfere with other judges' proper performance of judicial duties (cf. 22 NYCRR 100.4[A][3]) and would, at the very least, create an appearance of impropriety....

Likewise, a judge may not send “a letter to the Appellate Division expressing the judge’s disagreement with the Appellate Division’s reversal in an appeal from a proceeding that was before the inquirer” (Opinion 98-77). The inquiring judge proposed to “set[] forth in some detail reasons why, in the judge’s view, the reversal was erroneous” (id.). Two of the Committee’s rationales appear relevant here (id.):


First, a judge should not adopt the role of an advocate. Here, the judge is advancing arguments on behalf of a party to the proceeding whose interests were adversely affected by the appellate ruling. Seeking reconsideration of that decision is a matter for the aggrieved party to pursue, and not the judge. ... Third, 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.

         On a few occasions, judges have asked if they may weigh in on the Court of Appeals’ review of a judge’s proposed removal. In Opinion 97-97, the Committee advised that neither individual judges nor a judicial association may communicate with the Court of Appeals regarding the court’s review of a disciplinary determination that a judge should be removed. The Committee advised “[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). By contrast, in Opinion 99-172, the Committee advised that a judicial association may seek leave to file an amicus curiae brief in the Court of Appeals, “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” (Opinion 99-172). The association sought to comment on an issue it considered important to judicial independence, without taking any position whatsoever on the propriety of the respondent judge’s conduct.3 Even so, the Committee strongly cautioned the association to “avoid[] partisanship” and confine its amicus brief “to matters bearing directly upon the functioning of the judiciary as a whole” (id. [emphasis added]).

         The Committee notes it has not cited or referenced Opinion 99-172 in the past 17 years. Although the present inquiry does not necessitate reconsideration of Opinion 99-172, the Committee believes Opinion 99-172 should be limited to its facts.


         Here, the judicial association wishes to comment on the Appellate Division’s finding that there was no statutory authority for certain conduct by the trial judge in connection with sentencing criminal defendants, as the association believes there are strong policy reasons for trial judges to engage in this conduct in certain categories of criminal cases. If there is, in fact, no statutory authority for this conduct, the judicial association’s policy-based arguments should be made to the legislature so it can consider creating such statutory authority. Conversely, if there is statutory authority for this conduct, this point will surely be raised by the parties on appeal. Under these circumstances, the Committee believes it would be difficult, if not impossible, for this judge and judicial association to avoid the appearance that their proposed amicus brief is “advancing arguments on behalf of a party to the proceeding whose interests were adversely affected by the appellate ruling” and thereby impermissibly adopting “the role of an advocate” (Opinion 98-77). Indeed, such public comment on this particular high-profile case could potentially call the judges’ impartiality into question in other criminal cases (see 22 NYCRR 100.2; 100.3[B][8]; cf. Opinion 98-77).

         Nor is the issue at stake here of such obvious importance to the entire judiciary sufficient to override the usual policy against judges unnecessarily interjecting themselves into cases properly before other judges (see Opinions 15-50; 12-18; 10-175; 05-71; 98-77; 97-97; 88-159).

         Finally, 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. If they wish to propose changes to applicable statutes which solely affect procedures or remedies in their courts, this is ordinarily permissible as such provisions clearly relate to the administration of justice (see e.g. Opinion 13-189/14-02; 22 NYCRR 100.5[A][1][iii]; 100.4[C][1]). However, in so doing, they should be careful not to engage in impermissible public comment on the case currently before the Court of Appeals. This prohibition lasts as long as the case is “pending or impending” in any respect. Critically, “a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the ‘case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment’” (Opinion 14-26 [citation omitted]). Thus, the case will be fully concluded, for purposes of the public comment rule, only after (1) the Court of Appeals has decided the appeal and (2) any proceedings on remand have completely terminated and (3) the time for any further appeals or proceedings after remand is exhausted (see 22 NYCRR 100.0[U]-[V]; Opinion 15-100). If it is not possible to advocate for a desired statutory change without publicly commenting on a specific, identifiable case, the judge and the judicial association must wait until the case is completely resolved.


         1 The exceptions permit judges to “mak[e] public statements in the course of their official duties,” “explain[] for public information the procedures of the court,” and to comment publicly on “proceedings in which the judge is a litigant in a personal capacity” (22 NYCRR 100.3[B][8]). However, they are inapplicable here.

           2 For example, a judge may consult with other judges about cases before him/her (see 22 NYCRR 100.3[B][6][c]); may “cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]); and may participate in a case in which he/she is a litigant or has a cognizable legal interest (see e.g. 22 NYCRR 100.3[B][8]; 100.4[G]; Opinion 12-96). The present inquiry clearly does not involve possible coordination between judges presiding in interrelated cases, and nothing herein is intended to modify any prior opinions on that subject.

           3 One charge involved the respondent judge’s suggestion “that attorneys should settle cases because the judge had other things to do in the evening in question” (Opinion 99-172). Without taking a position on the respondent’s specific comments, the association sought to “maintain the independence of the judiciary” by ensuring that judges can still “put pressure on attorneys to settle cases” (id.).