Opinion 03-51

June 12, 2003

Please Note: Item 3 of the digest is partially modified or clarified by Opinion 12-84/12-95(B)-(G), which identifies two circumstances in which a judicial candidate may be an award recipient at a politically sponsored event: “either (a) the event is not a fund-raiser or (b) the candidate’s participation is unannounced prior to the event.”

Digest:         (1) A judge should not voluntarily write a letter to the Immigration Naturalization Service (INS) on behalf of a member of the judge’s church attesting to the member’s good character and requesting an expedited exclusion hearing, but may respond to a request for a letter of good character at the behest of the INS. (2) A judge who is not a candidate for judicial office may not attend a fund-raiser for a member of the United States House of Representatives for the purpose of accepting a Congressional Merit Award. (3) A judge who is a candidate for judicial office may attend a fund-raiser for a Congressman, but may not receive a Congressional Merit Award at the fund-raiser.

Rule:            22 NYCRR 100.2(C);100.5(A)(1)(c), (d), (g); 100.5(A)(2)(v); Opinions 90-156 (Vol. VI); 01-27; 02-123; 03-47.

Opinion:

         A judge asks if it is ethically permissible to write a letter to the Immigration and Naturalization Service (INS) at the request of a member of the judge’s church, attesting to the member’s good character and asking for an expedited exclusion hearing.

         Section 100.2(C) of the Rules Governing Judicial Conduct prohibits a judge from lending the prestige of judicial office to advance the private interests of others or from testifying voluntarily as a character witness. The Committee has previously concluded that such prohibitions preclude a judge from voluntarily providing 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 fiancee ( Opinion 02-123), and a letter to the New York State Department of Labor supporting an application for “Alien Labor Certification” at the request of a man known to a judge and the judge’s family as a waiter who works for a neighborhood restaurant (Opinion 03-47). Because the letter proposed in the present inquiry is similar in nature to both situations, it is the Committee’s view that the judge should not voluntarily write a letter to the INS on behalf of a member of the judge’s church attesting to the member’s good character; nor should the judge request an expedited exclusion hearing. The judge may provide a letter of good character, however, upon the request of the INS. See Opinion 90-156 (Vol. VI).

         The judge also asks if he or she may accept a Congressional Merit Award and attend an award ceremony during a fund-raiser for the sponsoring Congressman. Further, the judge asks if his or her status as a judicial candidate at the time of the fund-raiser would have any bearing on the Committee’s opinion.

         A judge who is not a candidate for judicial office is prohibited from engaging in any political activity including any partisan political activity [22 NYCRR 100.5(A)(1)(c)], permitting his or her name to be used in connection with any activity of a political organization [22 NYCRR 100.5(A)(1)(d)] and attending political gatherings [100.5(A)(1)(g)]. During a judge’s Window Period, however, a judge may attend politically sponsored dinners and other functions. 22 NYCRR 100.5(A)(2)(v). The inquiring judge, therefore, may only attend the fund-raiser if it occurs during the judge’s Window Period. But even during the Window Period, the judge should not accept such an award at the fund-raiser, [22 NYCRR 100.5(A)(1)(d); Opinion 01-27]. To do so would appear to implicate the judge in the Congressman’s own campaign and such perception should be avoided. But the judge may accept such an award in a non-political setting.