December 12, 2013
Digest: A judge who owns a home in a multi-unit building may publicly express his/her views on a proposal by building maintenance employees to unionize, provided the judge does so in his/her capacity as a private citizen and does not use judicial stationery or otherwise refer to his/her judicial office.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 10-197; 10-156; 08-33; 06-93; 04-24; 02-116; 02-41; 97-36 (Vol. XV); 92-21 (Vol. IX).
The inquiring full-time judge, who owns a home in a multi-unit building, states that the maintenance employees in his/her building “are endeavoring to become unionized,” and the building’s board of managers currently opposes unionization. The judge asks whether he/she may publicly display signs on the exterior of his/her unit indicating his/her opinion of the maintenance workers’ desire to unionize, without identifying his/her name or occupation. The judge notes that it is “most unlikely” that any case arising from unionization issues in his/her building will be addressed in his/her court.
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]). In general, a judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s impartiality; do not detract from the dignity of judicial office; do not interfere with the proper performance of judicial duties; and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). However, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
In general, a judge may publicly express his/her views on a variety of issues that affect him/her personally and directly, in his/her capacity “as a private citizen whose personal interests will be affected” (Opinion 08-33) but must avoid public comment on controversial subjects that “do not directly affect the judge’s interests” (Opinion 02-41). Thus, the Committee has previously advised that a judge, in his/her capacity as a private citizen, may speak or write about natural gas drilling to the extent it affects him/her personally as a property owner (see Opinions 10-197; 10-156); write a letter to the editor about a local school construction project that will affect his/her personal interests (see Opinion 08-33); speak at public hearings and write to elected officials about a proposed power line that will be located about one quarter mile from the judge’s house (see Opinion 06-93); voice his/her opinion at a Planning Board meeting about a proposal to re-zone commercial property located near property owned by the judge (see Opinion 92-21 [Vol. IX]); publicly give an opinion at local municipal board meetings concerning community matters that affect the judge’s personal interests (see Opinion 02-41); and speak about a proposed zoning change at various public forums to the extent that the proposed zoning change will affect the judge’s property (see Opinion 02-116). A judge also may write to the State Division of Transportation to express support for installation of a traffic light to ease congestion on a road near the judge’s home (see 97-36 (Vol. XV) and may write a letter to the State Liquor Authority opposing renewal of a liquor license for an establishment located near the judge’s home (see Opinion 04-24).
Here, too, it is likely that the unionization of maintenance workers for the building in which the judge resides directly affects the judge’s personal economic interests as a homeowner. Accordingly, the judge may publicly express his/her views on the proposal, provided he/she does not use judicial stationery or otherwise refer to his/her judicial office (see e.g. Opinions 10-197; 10-156; 08-33; 06-93; see generally 22 NYCRR 100.2[C]).1
1 The judge should, of course, also observe other generally applicable limitations on judicial speech and conduct (see e.g. 22 NYCRR 100.3[B] [public comment rule]; 100.4[A]- [limits on extra-judicial activities]; Opinion 08-33 [judge’s comments must not detract from the dignity of judicial office or interfere with his/her performance of judicial duties]).