May 5, 2016
Digest: On these facts, a judge may not join an informal discussion group with politically connected people to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, and other highly controversial or political matters largely unrelated to the law, the legal system, and the administration of justice.
Rule: 22 NYCRR 100.2; 100.3(A); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(a)-(i); Opinions 15-188; 13-189/14-02; 13-166/13-166(A); 12-58; 10-19; 09-156; 04-123; 03-38; 98-160; 98-137; 98-101.
A full-time judge asks whether he/she may participate in an “informal discussion group” with at least a dozen well-known and politically connected individuals in New York State government and politics, including some former judges, who wish to develop detailed proposals for a possible future constitutional convention. The group is not sponsored by a bar association or other existing organization, and membership is available only by private invitation. Although the group would not hold public hearings, there would be no expectation of privacy or confidentiality for its discussions.
A multi-page document outlines proposed topics for the group, including, for example: redistricting reform; comprehensive election and voting reforms, such as abolishing state and local boards of election in favor of a newly created entity; complete overhaul and reorganization of the state legislature; changes to the funding of local schools; new or increased expenditures for a variety of goods and services unrelated to the law, the legal system, or the administration of justice; and creation of a new agency to administer and enforce the campaign finance law and state ethics code.
A judge must respect and comply with the law and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2). Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A]). Indeed, 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 (see 22 NYCRR 100.4[A]-). A judge also must not “directly or indirectly engage in any political activity” except as expressly permitted (22 NYCRR 100.5[A]). For example, a judge may engage in certain political activities “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][iii]).
Preliminarily, the next referendum on whether to hold a constitutional convention is scheduled for 2017 (Opinion 15-188 n 7). Thus, just as the Committee noted in Opinion 15-188:
This judge is not currently serving as a constitutional delegate, nor can he/she be an announced candidate for election to a delegate position for a constitutional convention, as no constitutional convention has been scheduled.
This factual scenario is significant, because the restrictions on a judge’s engagement “in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial” (id.) would be rendered a nullity if all it took to bypass them was a claim that a judge was contemplating or preparing for a hypothetical future constitutional convention.1
Significantly, this is not a private meeting or discussion among friends, family or even colleagues, where a judge might reasonably expect the discussions to remain non-public. So far, the group’s members include many highly visible, well known individuals in New York State government and politics. Given the group’s ambitious goals and its members’ prominence, it is unlikely that the group, its members, or its goals will remain private. Indeed, its avowed purpose is to shape the agenda of a possible future constitutional convention, should the voters eventually authorize one. It cannot accomplish this purpose unless its members publicize the group’s work and leverage its members’ reputations.
As noted, the rules not only prohibit judges from “any political activity” except those specifically permitted (22 NYCRR 100.5[A]), but also further delineate partisan political activities that must be actively avoided (see 22 NYCRR 100.5[A][a]-[i]; Opinion 15-188 [“even when a judge is engaging in political activity on behalf of measures to improve the law, the legal system or the administration of justice, some limits still apply”]). Moreover, the rules prohibit both direct and indirect political activity (see 22 NYCRR 100.5[A][iii]).
The Committee has also advised that a judge “may not enter a public controversy on a matter that goes beyond the judge’s strictly private interest” (Opinion 04-123), where his/her “public involvement in matters of ‘substantial public controversy’ may reasonably cast doubt on the judge’s ability to act impartially in the performance of his/her judicial functions” (Opinion 10-19; cf. Opinion 98-101 [a judge may be a member of Planned Parenthood and the New York Civil Liberties Union, “provided that such membership does not involve the judge in organizational litigation or in public association with organizational positions on matters of public controversy”]).
Although this appears to be a matter of first impression, a few prior opinions provide some helpful guidance. In Opinion 98-137, the Committee considered a judge’s involvement in a civic organization that “advocates and pursues positions in controversial public policy matters,” and concluded the judge should no longer participate after taking the bench. As the Committee explained (id. [citations omitted]):
Virtually all of the activities of the organization involve the adoption, advocacy and pursuit of policies and positions in matters that are of substantial public controversy, many of which, in whole or in part, eventuate in litigation. Aligning oneself with the organization by way of membership, certainly creates the appearance of affirming the various policies and positions advocated and pursued by the group. This is not a position a judge should be in. It inevitably ‘casts reasonable doubt on the judge’s capacity to act impartially’ and is ‘incompatible with the judicial office.’”
In Opinion 09-156, by contrast, the Committee advised that a judge may remain a member of an “informal civic group that focuses on local quality-of-life, economic and social problems in the city.” That group made “recommendations for zoning changes, cleanup projects, fresh produce markets, and other changes” (Opinion 09-156), whereas the group here plans to delve into wide-ranging matters of deep political significance and great controversy, affecting the structure and function of other branches of government. Indeed, given the group’s stated goals, it is almost certain that the group will be the subject of intense public controversy, more like the entity addressed in Opinion 98-137.
Opinion 13-189/14-02 is also instructive. There, two local judges asked about publicly opposing the Secure Ammunition and Firearms Enforcement Act of 2013 (the “SAFE Act”). One judge asked if a judges’ association may seek repeal of the SAFE Act in its entirety; the other asked the association may seek repeal of specific provisions of the SAFE Act regarding re-registration requirements for sitting judges. The Committee advised that 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” (Opinion 13-189/14-02).
Here, too, the discussion group’s project goes well beyond measures to improve the law, the legal system, or the administration of justice (see 22 NYCRR 100.5[A][iii]). Rather, the proposed topics are highly controversial and political in nature, including issues such as legislative redistricting (see Opinion 15-188); election and voting reform (cf. Opinion 10-19 [judge may not serve as a non-partisan election observer in his/her town, where he/she would be “actively assisting a governmental entity to enforce the fairness of the voting process by identifying eligible voters, challenging voters and ballots for good cause, and reporting apparent irregularities to the Board’s agent”]); and new or increased funding for local schools and other goods or services not substantially related to the law, the legal system, or the administration of justice (see e.g. Opinions 12-58 [judge may not encourage legislators to appropriate funds for a fire company]; 03-38 [judge may not make public statements in support of a ballot proposition to secure funding for a library]; 98-160 [judge may not participate in library trustees’ efforts “in support of legislation establishing a special library district to be financed by a tax levied on local residents”]; cf. Opinion 13-166/13-166[A] [judges ordinarily may not serve on public school boards where those boards “may be called to make potentially controversial decisions affecting the community, particularly when the board is a component of local governments and a taxing authority”]).
Some topics, such as redistricting and restructuring the legislature, may even implicate separation-of-powers concerns if a judge were to participate in public debate on these issues at a time when he/she is not, and cannot be, a delegate for a constitutional convention or even a candidate for such a position (see Opinion 15-188 [“a judge’s public extra-judicial involvement in debates concerning redistricting could raise serious separation-of-powers concerns”]).
In sum, even if this judge were able to participate without directly engaging in prohibited political activity, it would be difficult, if not impossible, to avoid at least indirect political activity and the appearance of impropriety. Accordingly, on the facts presented, the judge may not join the group.
1 In other words, at this pre-referendum stage, when no constitutional convention has been scheduled, “it would be ‘hypothetical and premature’ to comment on what activities this judge might potentially ‘engage in for the purpose of securing the nomination and election to that position,’ let alone the scope of permissible activities if he/she were eventually elected to serve as a delegate” (Opinion 15-188 [citation omitted]).