Opinion 09-156

September 10, 2009

Digest:         A full-time city court judge (1) may participate in an informal, non-governmental civic group of individuals interested in addressing the city's quality of life, economic and social problems, subject to several considerations; and (2) may assist the group in organizing a public, non-partisan mayoral candidate forum.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(c), (e); Opinions 08-05; 07-210; 98-137 (Vol. XVII); 97-29 (Vol. XV); 93-108 (Vol. XII); 90-177 (Vol. VI).

Opinion:

         A full-time city court judge who previously published a book on community revitalization has also participated for several years in an informal civic group that focuses on local quality-of-life, economic and social problems in the city. The group's effort has included recommendations for zoning changes, cleanup projects, fresh produce markets, and other changes. In addition, the task force is starting to organize some nonpartisan public candidate forums for the city's mayoral candidates in the 2010 election, with an impartial moderator.

         The judge asks whether, in light of these initiatives to propose changes to the city housing code and organize mayoral candidate forums, he/she may continue to participate in the group. The judge also asks whether he/she may participate behind the scenes in organizing the proposed candidate forums.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do 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 the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1] - [3]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor of an organization devoted to the law, the legal system or the administration of justice, as long as it is not likely that the organization will be engaged in proceedings that ordinarily would come before the judge or, if the judge is full-time, the organization will not be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i], [ii]). In addition, a judge may not lend the prestige of judicial office to advance another’s private interests (see 22 NYCRR 100.2[C]).

         Based on the information the judge provided, it does not appear that his/her participation in the informal civic group is prohibited by the Rules Governing Judicial Conduct. There is no indication that the group is likely to be engaged in adversarial proceedings before the judge or regularly engaged in adversarial proceedings in any court (see 22 NYCRR 100.4[C][3][a][i],[ii]). In addition, it does not appear that the judge's membership would cast reasonable doubt on the judge's capacity to act impartially as a judge, would detract from judicial dignity, would interfere with the proper performance of judicial duties or otherwise prove incompatible with judicial office (see Opinions 07-210 [judge may serve on not-for-profit public benefit corporation for purpose of operating not-for-profit hospital and cancer research center]; 98-137 [Vol. XVII] [judge should terminate membership in civic organization that was involved in matters of substantial public controversy]; 93-108 [Vol. XII] [judge may be member of non-partisan citizens’ committee which seeks ways to reduce violence in the community]).

         With respect to the candidate forums, the Committee notes that a sitting judge is prohibited from engaging either directly or indirectly in political activity except as specifically authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). For instance, judges may not engage in partisan political activity (other than their own campaign for elective judicial office) and may not publicly endorse or oppose (other than by running against) any candidate for public office (see 22 NYCRR 100.5[A][1][c], [e]). A sitting judge may vote, however, as a private citizen (see 22 NYCRR 100.5[A][1][ii]). In the Committee's view, assisting behind-the-scenes in planning and organizing nonpartisan public forums for mayoral candidates is not partisan political activity, particularly as the activity is sponsored by a non-partisan civic group that is unaffiliated with any political party or candidate (see Opinions 08-05 [judge may attend a nonpartisan "meet the candidates" event]; 97-29 [Vol. XV] [judge may attend forum, not sponsored by a political organization, to which all candidates have been invited]; 90-177 [Vol. VI] [judge may attend candidate debate if it is sponsored by a non-political organization]).

         Therefore, the inquiring judge may continue to participate in the informal civic group and may participate behind the scenes organizing the proposed candidate forums. However, in doing so, the judge must ensure that his/her conduct promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), does not interfere with the proper performance of his/her judicial duties (see 22 NYCRR 100.4[A][3]) and does not create the impression that the judge endorses or opposes a particular candidate or otherwise seeks to advance the interests of a political party or candidate (see 22 NYCRR 100.5[A][1]).