Opinion 19-120


October 24, 2019

 

Digest:         (1) A full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.

(2) A judge and judicial association should use discretion when expressing a position on social media.

 

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(1); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(c)-(e); 100.5(A)(1)(g)-(h); 100.6(A); Opinions 19-29; 18-185; 18-78; 18-74; 18-08; 17-123; 16-151; 16-135; 16-94; 15-48; 13-149; 13-63; 13-17; 13-09/13-52; 11-29; 10-147; 09-244; 09-226; 09-166; 08-176; 08-73; 08-09; 07-109; 06-34; 99-158; 98-05; 95-28; 2017 Ann Rep of NY Commn on Jud Conduct, at 266.


Opinion:


         The inquiring full-time judge heads a judicial association’s legislative committee. The judge, the association, and many of its members would like to support or oppose proposed legislative and constitutional changes that will impact court structure, court operations, and the terms or conditions of judicial service.1 The judge asks if they may:

 

1) write and submit opinion letters to the editors of various publications, including but not limited to newspapers;

2) advocate in person or in writing to any governmental, labor, political or other body;

3) testify at any public hearing;

4) speak at a public or private forum;

5) express a position on social media.


         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]). A judge generally may speak, write, and participate in extra-judicial activities, subject to limitations (see 22 NYCRR 100.4[B]). For example, a judge must not make any public comment on a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). A judge’s extra-judicial activities must be compatible with judicial office and must 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 proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Although a full-time judge ordinarily must not “appear at a public hearing before an executive or legislative body or official,” the Rules expressly permit full-time judges to do so “on matters concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][1]). Likewise, the broad prohibition on any judge “directly or indirectly engag[ing] in any political activity” (see 22 NYCRR 100.5[A][1]) nonetheless permits judges to 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][1][iii]).


         In doing so, however, a judge must not engage in partisan political activity; may not 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; may not publicly endorse a candidate for public office; may not attend political gatherings outside his/her window period; and may not contribute to a political organization or candidate (see 22 NYCRR 100.5[A][1][c]-[e], [g]-[h]; Opinion 13-17).2


Supporting Measures to Improve the Law, the Legal System, and the Administration of Justice


         This judicial association and its members wish to comment publicly on certain proposed legislative or constitutional changes that would impact court structure, court operations and/or the terms or conditions of judicial service. These are clearly core matters concerning the law, the legal system, and the administration of justice in New York.3


         The ethics rules “broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice, and the Committee believes that participation in such activities is to be encouraged” (Opinion 13-09/13-52 [citations omitted]). Thus, while a judge must not sign a legislator’s petition for a proposed change in the law, where the specific petition “is framed as a partisan political initiative designed to garner statements of public support for the individual legislator” (Opinion 13-17), a judge may support the underlying legislation (id.):

 

[I]f the judge believes a particular change in the law will strengthen certain constitutional rights, he/she may express his/her views on this matter in other ways (see e.g. Opinion 08-73 [discussing prior opinions and permissible alternatives]; see also e.g. Opinions 11-29 [a judge may co-chair a bar association’s subcommittee to address the issue of “Brady” disclosure and related Brady issues, where the group intends to comment on prospective legislation and perhaps create protocols to further “Brady’s” goals]; 09-244 [a judge may publicly debate the need for a constitutional convention to reform the New York Judiciary, with certain limitations]; 09-226 [magistrates’ association members may urge the association to petition the state legislature to repeal a law mandating collection of surcharges in local courts]; 08-09 [a judge may join, support, and participate in an organization formed to seek a change in the law that would enable more non-relative victims of domestic violence to obtain civil orders of protection in Family Court]).


Again, in Opinion 18-08, we said “a judge may contact legislators about matters concerning the law, the legal system, or the administration of justice,” relying on many prior opinions (id.):

 

For example, a judge may meet privately with a state legislator to discuss legislation that proposes judicial upgrades (see Opinion 13-63); may support efforts to increase justice court funding via increased reimbursement of traffic tickets to towns and villages (see Opinion 15-48); write legislators about the impact of reduced mental health court staff (see Opinion 99-158); and write to legislators seeking names of people who might be suitable mentors for veterans in treatment courts (see Opinion 17-123). A judge also may advocate passage of a bond measure to fund a new courthouse by writing an op-ed piece, speak at public fora, vote and otherwise advocate publicly for a new court facility, as these acts concern the law, the legal system and/or the administration of justice (see Opinion 07-109).


Similarly, in Opinion 16-135, we said a judge “may publicly advocate for a change in the Penal Law by writing to executive and legislative bodies and/or officials, as well as other potentially interested parties, subject to generally applicable limitations on judicial speech and conduct.” As we explained (id.):

 

a judge may directly contact state officials to express her/his views on matters involving the law, the legal system or the administration for justice (see Opinions 10-147 [a judge may actively and publicly advocate for or against a bill that would extend defendants’ rights]; 09-166 [a judge may lobby elected officials in support of a bill designed to improve prisoner healthcare]; 06-34 [members of a judges’ association may lobby the legislature and send a letter urging passage of a bill that would benefit incarcerated domestic violence survivors]; 95-28 [a judge may, on his/her own initiative, directly contact the governor on a matter concerning the administration of justice]). The Committee also has advised that judge may co-author an op-ed article supporting the passage of certain legislation concerning the law, the legal system or the administration of justice (see Opinion 13-149).


         Of course, even when seeking to improve the law, the legal system or the administration of justice, a judge must abide by generally applicable limitations on judicial speech and conduct (see Opinion 16-94 [citations omitted]):

 

For example, a judge still may not publicly comment on pending or impending cases in the United States or its territories and must ensure that the judge’s comments do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or otherwise interfere with the proper performance of judicial duties. Likewise, ... a judge may not form a political action committee, even to advance and influence legislative initiatives that affect the courts and the judiciary. The Committee explained that the judge must not do indirectly what he/she cannot do directly, such as “engag[ing] in such politically partisan activities as publicly endorsing or opposing candidates for public office and soliciting funds that would be used to support or defeat candidates for political office.” The Committee has also distinguished between publicly supporting a change in the law, which is permissible for a judge, and publicly supporting a specific legislator, which is not.

 

         Ordinarily, “a judges’ association is held to the same standards as an individual judge” (Opinion 18-185 [citation and internal quotation marks omitted]). Thus, for example, a magistrates’ association may issue a resolution supporting or opposing “changes in the law concerning a local judge’s ability to set bail in various misdemeanor cases,” and send it to local legislators and/or the press (see Opinion 18-78). Likewise, a judicial association may engage a lobbyist to advocate its proposed legislation on matters such as “terms of judicial office, retirement benefits and other issues related to the court system and court personnel” (Opinion 98-05).


         In conclusion, a full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes concerning court structure, court operations or the terms or conditions of judicial service by: (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials,4 governmental bodies, and labor unions; © testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.


Note on Use of Social Media


         The judge also asks if he/she and the judicial association may express a position on social media. In general, judges may use social media, but “should exercise an appropriate degree of discretion” in doing so (Opinion 08-176). Thus, judges must ensure their advocacy does not create an appearance of impropriety, and be aware of the risks presented by, for example, approving or re-posting others’ comments (see 22 NYCRR 100.2[A]; Opinion 18-74 [reminding judges that “any online communications may potentially be forwarded, captured in a screen-shot, or printed out” and urging them to “assume that their online communications are not private and tailor them accordingly”]; 2017 Ann Rep of NY Commn on Jud Conduct, at 266 [considering both the respondent judge’s own social media message “and [his/her] ‘likes’ of comments ... posted in response to [his/her] message”]). As usual, a judge must not insert him/herself unnecessarily into the center of matters of substantial local controversy (see e.g. Opinions 19-29; 18-78) and must comply with judicial speech restrictions (see e.g. 22 NYCRR 100.3[B][6] [ex parte communications rule]; 100.3[B][8] [public comment rule]).



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1 The judicial association’s members include both sitting and retired judges. As a reminder, fully retired judges, who are not designated as judicial hearing officers or otherwise performing judicial functions with the court system, are not subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]; Opinion 16-151).


2 We do not here address rules applicable to a judge in his/her window period for election or re-election to judicial office (see e.g. 22 NYCRR 100.5[A][1][c]).


3 With respect to any proposal for changing court structure and operations, both its proponents and its detractors are (in their view) supporting measures to improve the law, the legal system, and the administration of justice. Thus, our advice applies to judges on all sides.


4 As used here, “public officials” are persons “elected or appointed to carry out some portion of a government’s sovereign powers” (Black’s Law Dictionary [7th ed.]).