September 6, 2007
Digest: A part-time judge may appear before a municipal board as a panelist, or otherwise publicly discuss political issues or matters of public controversy.
Rules: 22 NYCRR 100.2(C); 100.3(B)(8);100.4(A)(1),(2),(3); 100.4(B); 100.4(C)(1); 100.4(C)(2)(a); 100.6(B)(1); Opinion 07-47.
A part-time Town and Village Justice asks if it is ethically permissible for him/her to publicly discuss a subject that is "controversial" and "politically charged" in his/her community. The inquirer indicates that he/she authored a book on the subject prior to assuming judicial office; that he/she is regarded as an expert on the subject; and that his/her law firm is recognized as a leader with respect to the issues involved. The inquirer has been asked to appear before a local municipal board as a panelist, and has been asked by the media, interested citizens, an advocacy group, and a local government task force to publicly comment about the subject.
A judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of the Rules Governing Judicial Conduct. 22 NYCRR 100.4(B). While a full-time judge cannot appear at a public hearing before an executive or legislative body or official, except on matters concerning the law, the legal system or the administration of justice [22 NYCRR 100.4(C)(1)], and may not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice [22 NYCRR 100.4 (C)(2)(a)], a part-time judge is not so restricted. 22 NYCRR 100.6(B)(1). No judge, however, may comment on a pending or impending proceeding [22 NYCRR 100.3(B)(8)].
The Town and Village Justice in the present inquiry proposes to speak about the “controversial” and “politically charged” subject as an attorney and an expert on the subject, and not in his/her judicial capacity.
In Opinion 07-47, this Committee advised that "section 100.3(B)(8) of the Rules Governing Judicial Conduct does not completely bar a part-time judge from providing responses solely in his/her capacity as an attorney." Similarly, as long as the inquiring Town and Village Justice minimizes the risk of conflict with his/her judicial obligations, does not cast doubt on his/her ability to be impartial as a judge, does not detract from the dignity of the judicial office [22 NYCRR 100.4(A)(1),(2),(3)], and does not invoke the fact that he/she also serves as a judge [22 NYCRR 100.2(C)], he/she may participate on the panel and otherwise publicly comment on the subject described.
While in this opinion we recognize that part-time judges are afforded speech rights otherwise denied to full-time judges, we nevertheless caution that part-time judges must exercise such rights responsibly. In particular, part-time judges should not intentionally immerse themselves in issues that are politically controversial.