Opinion 09-244

January 27-28, 2010

Digest:         A judge may participate in the public debate regarding the need for a constitutional convention to reform the New York judiciary, subject to certain limitations.

Rules:          NY Constitution, article VI, § 20(b)(2); 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(B); Opinions 09-226; 09-131; 08-73; 07-188; 96-146 (Vol. XV); 92-106 (Vol. X).

Opinion:

         A full-time judge asks whether he/she may "participate in the public debate regarding the need for a constitutional convention to reform the New York judiciary."

          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]). Except as specifically permitted by the Rules Governing Judicial Conduct or by law, a judge may not engage either directly or indirectly in any political activity (see 22 NYCRR 100.5[A][1]; Opinion 08-73 [judge may not form a political action committee]). Nevertheless, a judge may, with some limitations, express his/her views concerning measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]; Opinions 09-226 [judges may petition the state legislature to repeal legislation mandating the collection of surcharges in local courts]; 07-188 [noting that the Rules "specifically encourage judges to become involved in extra-judicial activities that concern the law, the legal system and the administration of justice"]).

         The Committee concludes that a judge may publicly discuss the need for judicial reform and a constitutional convention, as these are matters relating to the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]; cf. Opinions 09-131 [suggesting that an organization that advocates, among other things, increasing judicial salaries, judicial selection reform, and Family Court reform, is one that "strives to improve the administration and quality of justice"]; 92-106 [Vol. X] [finding that "a national commission on uniform state laws, which considers and proposes legal reform measures" is an entity "concerned with the legal system and the administration of justice"]). This conclusion is particularly appropriate because the Rules and the New York State Constitution expressly authorize judges to serve as delegates to or members of a state constitutional convention (see 22 NYCRR 100.5[B]; NY Constitution, article VI, § 20[b][2]; Opinion 96-146 [Vol. XV]).

         However, the traditional limitations on judicial speech remain applicable. The judge should avoid discussing any pending or impending cases in the courts of the United States or its territories (see 22 NYCRR 100.3[B][8]), 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 (see 22 NYCRR 100.4[A][1]-[3]; 22 NYCRR 100.2[A]).