Opinion 08-73

April 24, 2008

Digest:         A judge may not form a Political Action Committee (PAC) to advance and influence legislative initiatives that affect the courts and the judiciary.

Rules:          22 NYCRR 100.4(C); 100.5(A)(1)(i)-(iii); 100.5(A)(1)(c), (e), (h); Opinion 06-34; 99-158 (Vol. XVIII); 98-101 (Vol. XVII); 98-05 (Vol. XVI).

Opinion:

         A judge asks whether it is ethically permissible for an elected state-paid judge to form a Political Action Committee (PAC) to advance and influence legislative initiatives that impact the courts and the judiciary. The judge also asks several related questions about funding such a committee and about permissible PAC expenditures.

         Pursuant to the Rules Governing Judicial Conduct, a judge shall not “directly or indirectly [emphasis added] engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][i] - [iii]). Thus, a judge may not engage in any partisan political activity, other than participating in his/her own campaign for elective judicial office; may not publicly endorse or publicly oppose (other than by running against) another candidate for public office; and may not solicit funds for or make a contribution to a political candidate (see 22 NYCRR 100.5[1][c], [e], [h]).

         In the present inquiry, the judge would establish a PAC to engage 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. As the Rules prohibit a judge from engaging in those partisan activities either directly or indirectly, establishing the proposed PAC would also be prohibited (see Opinion 98-101 [a judge’s membership in the National Women’s Political Caucus, which identifies candidates for judicial office and assists them in getting elected, constitutes impermissible political conduct and violates the Rules Governing Judicial Conduct]).

         While a judge cannot form a PAC to advance and influence legislative initiatives, a judge may express his/her views concerning matters that impact the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]). For example, the members of a judge’s association may support enactment of a bill that would benefit domestic violence survivors who have been convicted of crimes against their abusers, by lobbying and sending letters to legislators (see Opinion 06-34). Also, a judge’s association may engage a lobbyist to act on its behalf to support legislation sponsored by the association involving such matters as terms of judicial office, retirement benefits and other issues related to the court system and court personnel (see Opinion 98-05 [Vol. XVI]). And, a judge may write to legislators expressing his/her disapproval of a reduction in funding for county mental health services (see Opinion 99-158 [Vol. XVIII]). As these activities are not political and involve the law, the legal system or the administration of justice, they are permitted by section 100.5 (A)(1) of the Rules Governing Judicial Conduct and by section 100.4(C) of the Rules [full-time judge shall not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice]).