Opinion 16-169

December 16, 2016

PERSONAL & CONFIDENTIAL

Dear :

         This responds to your inquiry (16-169) asking whether you may circulate a petition to force a referendum on a proposed sale of a large nearby parcel of land owned by your local school district. The petition does not take a position for or against the proposed sale and is not framed as support for or opposition to any legislator or political party or candidate.

The Committee has previously advised that a judge may address a governmental body and otherwise speak publicly on a topic that affects him/her personally, provided the judge expresses his/her views as a private citizen whose personal interests will be affected; the judge does not use official stationery or refer to his/her judicial office; the judge expresses him/herself in a manner consistent with the dignity of judicial office; and the extra-judicial activity does not interfere with the judge’s performance of judicial duties. In addition, the judge must avoid impermissible political activity and must not insert him/herself unnecessarily into the center of controversy, for example, by taking a position that is so controversial that it is incompatible with judicial office. The Committee believes that the passing of a petition is the equivalent of speaking publicly on the subject. Therefore, the proposed activity is permissible subject to the aforementioned limitations.

         Enclosed, for your convenience, are Opinions 13-189/14-02; 13-178; 10-156; 08-33; 97-36; and 92-21 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

Encls.