January 27, 2022
Digest: Subject to certain limitations, a full-time judge may share with the head of a children’s services agency the judge’s observations of agency operations and procedures used when removing children from their homes.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(2)(a); 100.4(C)(3)(b)(iii); 100.5(A)(1)(iii); Opinions 20-42; 19-120; 18-78; 16-135; 16-12; 15-195.
The inquiring full-time judge would like to write to the new head of a children’s services agency to raise concerns about the operations of affiliated agencies “as it pertains to removals of children from their homes and families.” Based on the judge’s observations and experience in child protective cases, the judge believes that systemic changes are necessary and that children are needlessly traumatized and harmed by certain current policies and practices. The judge would like to advise the new agency head of these practices, as they may “not be aware of what is happening on the ground,” and would copy “the heads of the other relevant parties” (i.e. the various groups that represent children and parents in the judge’s jurisdiction). The judge asks if it is permissible to send such a letter.
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 judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not publicly comment on a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B]). A judge may nonetheless engage in extra-judicial activities if they are compatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). Moreover, in certain respects, the Rules afford judges a greater degree of latitude when seeking to improve “the law, the legal system or the administration of justice” (22 NYCRR 100.4[C] [public hearings]; 100.4[C][a] [governmental commissions]; 100.4[C][b][iii] [fund-granting recommendations]; 100.5[A][iii] [political activity]).
Applying these principles, we have advised that a judge or judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or terms, or conditions of judicial service by sending letters or editorials to newspapers, advocating in person or writing to public officials, testifying at public hearings and speaking at public or private forums (see Opinion 19-120). A judge also may advocate for a change in the Penal Law by writing to executive and legislative bodies and/or officials as well as other potentially interested parties (see Opinion 16-135). Similarly, a magistrates’ association may issue a resolution supporting or opposing “changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases,” and send it to local legislators and/or the press (see Opinion 18-78).
Here, the inquiring judge wishes to share their judicial observations and experiences directly with the head of a children’s services agency so as to effect changes in certain policies. As such, the inquiry is more particularized.
We note that we are “not in a position to review, edit or otherwise approve/disapprove” judges’ proposed writings (see Opinion 16-12). Rather, “[i]t is [each judge’s] responsibility to decide whether [his/her] proposed statement complies with the guidelines previously set forth by this Committee, or whether [he/she] should further edit the statement to meet those guidelines” (id.; see generally Opinion 20-42).
We have previously recognized the sensitive nature of cases that appear in family courts, noting that “Family Court judges bear ‘wide discretion and grave responsibilities’ for judicial intervention in family life, particularly when it comes to the protection and safeguarding of children’s ‘physical, mental, and emotional well-being’” (Opinion 15-195 [citations omitted]). Because this judge has special responsibilities to protect and safeguard children within their purview, the judge is in a unique position to make observations that will improve services such children require. As such, the judge may write to the new agency head, copying attorneys who represent parents and children in child protective proceedings, and make the judge’s recommendations known. However, this does not come without qualification. The inquiring judge should not comment on or share details concerning specific cases that are pending or impending, nor make statements that cast doubt on the judge’s impartiality or indicate a predisposition to decide cases in a certain way. Instead, the inquiring judge may address broad policy concerns, subject to generally applicable limitations on judicial speech and conduct.