Opinion 07-155/98-31

Amended October 20, 2016 and Re-issued April 5, 2017

Digest:         Neither a part-time nor a full-time judge may serve on a charter review commission to review and propose amendments to a city or county charter, as they must avoid improper political activity and maintain public confidence in their ability to be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(B); Opinions 16-60; 15-188; 13-98; 09-165; 08-42; 90-167.

Opinion:

         The Committee has been asked to reconsider two prior opinions, which reach different results on whether a judge may serve on a commission to review and propose amendments to a city or county charter, depending on whether the judge is a full-time or part-time judge. As discussed below, the Committee concludes that such service is not permissible under Part 100.

The Prior Opinions

In Opinion 98-31, the Committee said a part-time City Court judge may serve on a commission to review and propose amendments to the city charter, where the recommended changes “would be voted upon by the electorate in a referendum” and the judge’s service would be “voluntary and uncompensated” (Opinion 98-31). The Committee reasoned that a part-time judge may “accept appointment to a governmental committee or commission” (id.). Without detailed analysis, the Committee asserted there was “no inherent incompatibility of office, appearance of partiality or of impropriety” (id.). The Committee did not discuss whether service on the commission might involve partisan political issues unrelated to the law, the legal system, and the administration of justice, or whether a judge’s service might be unduly controversial.

Nearly a decade later, a full-time judge asked a similar question. In Opinion 07-155, the Committee said a full-time judge may not serve on a County Charter Revision Commission, “where the purpose of the Commission is to suggest changes and make recommendations for improving the laws and provisions contained in the County Charter.” The Committee reasoned that “the review will implicate issues of policy or of a political nature, including many issues which do not involve ‘the improvement of the law, the legal system or the administration of justice’” (Opinion 07-155 [emphasis added]). Indeed, the Committee’s core concern was that a judge who serves on a charter review commission “would be involved with issues that would ‘effectively impair judicial independence [by] enmesh[ing] the judiciary in what is essentially a political undertaking’ and with issues that ‘bear on fundamental political concerns’” (id.). However, the Committee distinguished Opinion 98-31 simply by saying “the different outcome ... flows directly from the inquirer’s status as a part-time judge, which, unlike a full-time judge, is not as restricted in engaging in outside activities” (Opinion 07-155).

Analysis

            A judge, whether serving full-time or part-time, 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]). 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][3]) and a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Further, 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 proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge also must not “directly or indirectly engage in any political activity” except as expressly permitted (22 NYCRR 100.5[A][1]). Nonetheless, 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][1][iii]). The rules expressly contemplate a judge “serving as a delegate in a state constitutional convention” (22 NYCRR 100.5[B]), but do not address whether a judge may serve on a charter review commission.

         The Committee recently advised against a judge joining an ostensibly high-profile and ostensibly non-partisan group to develop detailed proposals for a possible future constitutional convention, where the specific topics under consideration, including legislative redistricting, “go well beyond measures to improve the law, the legal system, or the administration of justice” and could be viewed as “highly controversial and political in nature” (Opinion 16-60; see also Opinion 15-188 [“a judge’s public extra-judicial involvement in debates concerning redistricting could raise serious separation-of-powers concerns,” and would involve the judge “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”]).

         On further consideration, the Committee believes a judge’s participation on a governmental charter revision commission, as described, is virtually certain to involve the judge “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” (Opinion 15-188). As both full-time and part-time judges must avoid improper political activity and maintain public confidence in their ability to be fair and impartial, the Committee sees no reason to distinguish between them. Accordingly, neither a part-time nor a full-time judge may serve on a charter review commission to review and propose amendments to a city or county charter.

            The Committee takes no position on whether a part-time lawyer judge may be retained to provide legal advice to a charter review commission, a fact pattern not presented here (see generally Opinions 13-98; 09-165; 08-42; 90-167).