Opinion 18-78

       July 10, 2018

Dear :

          This answers your inquiry (18-78) asking whether it is ethically permissible for a magistrates’ association to issue a resolution supporting or opposing changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases, and, if so, whether it is also ethically permissible to send the resolution to local legislators and/or the press.

          The Rules Governing Judicial Conduct Committee specifically provide that a judge may publicly express his/her views on matters involving the law, the legal system, and the administration of justice (see 22 NYCRR 1004.[C][1]). This includes advocating for a change in the Penal Law by writing to executive and legislative bodies as well as other potentially interested parties and actively and publicly lobbying for or against a bill regarding the rights of defendants before the Justice Courts.

          However, a judge must ensure that his/her advocacy does not create an appearance of impropriety (see 22 NYCRR 100.2[A]). Furthermore, a judge must not insert him/herself unnecessarily into the center of matters of substantial, local controversy and must comply with all limitations on judicial speech, including public comment (see 22 NYCRR 100.3[B][8]).

          Enclosed, for your convenience, are Opinions 16-178; 16-135; 13-189/14-02; and 10-147 which address this issue.

                                           Very truly yours, 

                                           George D. Marlow, Assoc. Justice

                                           Appellate Div., First Dep’t (Ret.)

                                           Committee Co-Chair 

                                            Hon. Margaret T. Walsh

                                           Family Court Judge

                                           Acting Justice, Supreme Court

                                           Committee Co-Chair