April 23, 2015
Digest: A judge may write to the American Consulate in a foreign country declaring the judge’s invitation to his/her relatives to visit him/her in the United States, demonstrating the judge is a responsible person, able to meet the material and accommodation needs of the persons invited, detailing the judge’s income and its source. He/she may use judicial stationery which must be marked “Personal and Unofficial.”
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); Opinions 14-33; 13-147; 12-10; 03-51; 03-47; 02-123.
The inquiring judge wishes to invite certain family members who are citizens of a foreign nation to visit the judge in the United States for an upcoming family event. The judge explains that, while he/she was in private practice, he/she would write and forward consular letters of invitation inviting family members to visit the judge in the United States. At the time, the judge did so on his/her law office letterhead, “since the usual issues of interest to the Consulate are whether the person issuing the invitation is a responsible member of society, the amount and source of said person’s income and that said person is able to meet the material and accommodation needs of the invited persons.”1 The judge asks whether he/she may write and forward a consular letter of invitation on judicial stationery2 and disclose the source and amount of the judge’s income.
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 are not incompatible 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]-). However, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
The Committee has advised that a judge may not, at the request of a friend who is seeking permission from a government agency to enter a foreign country, provide the friend’s lawyers with a letter of recommendation on official letterhead for submission to the government agency (Opinion 14-33). As the Committee explained in 14-33:
In applying Section 100.2(C), the Committee has distinguished between “a strictly private situation, e.g. a letter of reference on behalf of a job applicant known to the judge,” and a letter supporting an individual’s application to a government agency “to make a decision with substantial public implications” (Opinion 03-47). In the latter situation, much greater caution is needed to avoid creating an appearance that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency (see 22 NYCRR 100.2[C]).
Thus, the Committee has advised that Section 100.2(C) precludes a judge from providing, at the request of the applicant, a letter of good character on behalf of the judge’s dog walker that would be submitted to the United States Embassy in a foreign country to support a visa application by the dog walker’s future spouse (see Opinion 02-123); a letter to the New York State Department of Labor supporting an application for “Alien Labor Certification” at the request of an individual known to a judge and the judge’s family as a waiter who works for a neighborhood restaurant (see Opinion 03-47); or a letter to the Immigration Naturalization Service on behalf of a member of the judge’s religious institution attesting to the member’s good character and requesting an expedited exclusion hearing (see Opinion 03-51).
Conversely, the Committee has advised that a judge may witness and authenticate a relative’s signature on a foreign pension document, where the document lists “judges” as one of several categories of acceptable witnesses (see Opinion 12-10). The Committee noted that the judge’s role was “to witness his/her relative’s signature and validate, for the foreign country’s military pension, the identity of the judge’s relative. The judge will be merely attesting to facts within his/her personal knowledge and observation” (id.). Similarly, the Committee has advised that a judge may proctor a friend’s engineering exam where the certifying organization lists “Government Official” as one of the categories of acceptable proctors (see Opinion 13-147). The Committee noted that while proctoring, the judge will be merely attesting to facts within his/her personal knowledge and observation (id.).
These facts appear to fall somewhere between these two lines of prior opinions. Though the judge proposes to write to the U.S. Consulate in support of his/her relatives’ visa application to visit the United States, which necessarily requires “much greater caution” than “a strictly private situation” (Opinion 14-33), the judge will essentially be attesting to the judge’s personal willingness and ability to be host to the judge’s family members if the visa application is granted. Thus, the judge is offering to assume personal responsibility for his/her visiting family members. These circumstances present little risk the judge is appearing to voluntarily testify as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency (see 22 NYCRR 100.2[C]).
Accordingly, the Committee concludes the inquiring judge may write a consular letter of invitation for his/her family members to visit him/her in the United States. Where, as here, the judge must disclose “the amount and source of his/her income” to establish his/her ability to “meet the material and accommodation needs of the invited persons,” it will clearly be necessary for the judge to disclose his/her identity as a judge. Under these circumstances, the Committee concludes the judge may use judicial stationery to send the consular letter of invitation, but should include the words “Personal and Unofficial” on the letter.
1 As described by the inquiring judge, it appears that the consular letter of invitation may facilitate the granting of a visitor’s visa to the judge’s relatives by assuring the U.S. Consulate in the foreign county that the judge is, in essence, personally assuming responsibility for his/her relatives during their visit.
2 By “judicial stationery,” the Committee means both official stationery the Unified Court System may furnish to a judge, and any stationery an individual judge creates and pays for which, in words or substance, denotes his/her status as a sitting judge. It is intended to encompass any stationery or letterhead that is, or appears to be, official stationery of the judge or the court.