Joint Opinion 13-189/14-02

January 30, 2014

Digest:         Under the circumstances presented, a judges’ association may not publicly support repeal of a controversial gun control law in its entirety, but may publicly support the repeal or amendment of specific statutory provisions which affect the administration of justice. Individual judges may, in their capacity as private citizens, publicly support the repeal or amendment of provisions that directly affect their own personal interests, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1)(I), (iii); 100.5(A)(1)(c))-(e), (h); Opinions 13-17; 13-07; 10-153; 10-147; 10-130; 09-166; 09-131; 08-73; 08-33; 06-93; 06-34; 04-24; 02-116; 99-158 (Vol. XVIII); 98-160 (Vol. XVII); 98-05 (Vol. XVI); 97-36 (Vol. XV); 96-41 (Vol. XIV); 92-21 (Vol. IX).

Opinion:

         In Inquiry 13-189, a part-time town or village judge asks whether a judges’ association may “publicly support a bill introduced into the senate, and sponsored by a local senator, to change a NY State law or introduce new laws.” At the Committee’s request, the inquiring judge subsequently clarified that the association wishes to seek repeal of the Secure Ammunition and Firearms Enforcement Act of 2013 (the “SAFE Act”) in its entirety.

         In Inquiry 14-02, another part-time town or village judge asks whether a judges’ association may lobby for repeal of specific provisions of the SAFE Act regarding re-registration requirements for sitting judges. The judge explains the basis for the association’s interest in seeking amendment or repeal of these particular provisions as follows:

We believe that it would be in the interest of the [a]dministration of [j]ustice to lobby for an exemption of our judges [from the re-registration requirements]. We have no state security in our courts and several incidents of violence towards local judges shows the [need for] personal security. The [SAFE Act] mandates re-registration every five years and carries substantial expense [which] would discourage our members from re-registering. Therefore, we ... wish ... to be exempt from the re-registration requirement ... so long as we are sitting judges.

         The inquiring judge in Inquiry 14-02 also asks, on behalf of the association’s members, whether individual judges may “lobby[] on their own to repeal certain other provisions of the [SAFE] Act that might not directly affect the administration of the courts,” and if so, whether they may be “identified as judges” when engaging in such activities.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), and therefore a judge’s extra-judicial activities must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties, and must not be incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not directly or indirectly engage in any political activity except as authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1][I]). A judge may, subject to certain limitations, engage in political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]).¹ A judge may also appear at a public hearing before an executive or legislative body or official on such matters or when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]).

         The Committee previously has advised that a judge or judicial association may write to and lobby legislators on matters concerning the improvement of the law, the legal system or the administration of justice (see e.g. Opinions 10-147 [rights of defendants before the justice courts]; 09-166 [prisoner healthcare]; 06-34 [benefits to incarcerated domestic violence survivors who have been convicted of crimes against their abusers]; 99-158 [Vol. XVIII] [impact of reduction in mental health staff on the courts]; 96-41 [Vol. XIV] [retirement benefits for non-judicial employees of the Unified Court System]; see also Opinion 98-05 [Vol. XVI] [an association of judges may engage a lobbyist to represent its members in advocating legislation concerning the law, the legal system and the administration of their courts]).

         Accordingly, with respect to Inquiry 14-02, the Committee concludes that a judges’ association may seek repeal or amendment of specific SAFE Act provisions which affect them as sitting judges, as such provisions clearly relate to the administration of justice (see 22 NYCRR 100.5[A][1][iii]; 100.4[C][1]). In doing so, of course, the association must avoid impermissible political activity (see e.g. Opinions 13-17 [judge may not sign a legislator’s petition regarding a proposed change in the law, where “the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator”]; 08-73 [judge may not form a Political Action Committee to advance and influence legislative initiatives that affect the courts and the judiciary]; see also generally 22 NYCRR 100.5[A][1][c]-[e], [h]).

         By contrast, with respect to Inquiry 13-189, the Committee concludes that a judges’ association may not seek repeal of the SAFE Act in its entirety, as the law, when considered as a whole, appears to relate primarily to highly controversial gun control issues which do not clearly and directly implicate the law, the legal system or the administration of justice within the meaning of the Committee’s prior opinions (see Opinions 10-130 [judge may not advance legislative agenda of an organization which promotes safety standards and administrative reform in the sport of boxing]; 98-160 [Vol. XVII] [judge may not participate in lobbying efforts in support of legislation establishing a special library district to be financed by a tax levied on local residents]).

         Finally, with respect to the question of whether individual judges may “lobby[] on their own to repeal certain other provisions of the [SAFE] Act that might not directly affect the administration of the courts,” and if so, whether they may be “identified as judges” (Inquiry 14-02), the Committee has previously advised that a judge, in his/her capacity as a private citizen, may 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 the judge owns (see Opinion 92-21 [Vol. IX]); and speak about a proposed zoning change at various public forums as to the effect of the proposed zoning change on 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 Opinion 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).

         Accordingly, the Committee concludes that individual judges may also express their views on repeal of specific provisions of the SAFE Act “solely as ... private citizen[s] whose personal interests will be affected” (Opinion 08-33), and in doing so, may not use official stationery or refer to their judicial office (see Opinions 08-33; 06-93; 97-36 [Vol. XV]). As always, the judges must avoid impermissible political activity (e.g. Opinions 13-17; 08-73; 22 NYCRR 100.5[A][1][c]-[e], [h]). Where, as here, the legislation is highly controversial, a judge must also be mindful that his/her extrajudicial activities must not “detract from the dignity of judicial office, interfere with the performance of judicial duties, or undermine public confidence in the judge’s ability to remain impartial” (Opinion 10-153; see also 22 NYCRR 100.4[A][2]-[3]). That is, judges must not insert themselves unnecessarily into the center of controversy, for example, by taking a position that is “so controversial that it is incompatible with judicial office” (Opinion 13-07).

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     ¹ For example, a judge may not, in support of a measure to improve the law, the legal system, or the administration of justice: engage in partisan political activity; participate in any political campaign for any office or permit his/her name to be used in connection with any activity of a political organization; publicly endorse a candidate for public office; or contribute to a political organization or candidate (see Opinion 13-17; 22 NYCRR 100.5[A][1][c]-[e], [h]).