Opinion 10-156

October 28, 2010

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A Support Magistrate may speak as a private citizen at public hearings and may write to elected officials about natural gas drilling in the county where the Support Magistrate owns property, but may not use official stationery or refer to his/her quasi-judicial office.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(2)(a); 100.6(A); Opinions 06-93, 04-24; 03-80; 02-116; 02-41; 01-07; 92-21 (Vol. IX).

Opinion:

           A Support Magistrate asks whether it is ethically permissible to participate in a citizens’ group opposing natural gas drilling in his/her county. The inquirer is likely to speak at public hearings and to contact public officials concerning the proposed drilling. The inquirer also asks if there are any disqualification considerations should employees, managers or officers of the drilling company appear before him/her.

         The Committee has previously determined that quasi-judicial officials, including Support Magistrates, are required to comply with the Rules Governing Judicial Conduct "in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct" (22 NYCRR 100.6[A]; see also Opinion 03-80]).

         A judge 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]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s impartiality; do not detract from the dignity of judicial office; do not interfere with the proper performance of judicial duties; and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). However, a full-time judge may 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 or except when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1] and [2][a]).

         The Committee has previously advised that a full-time judge, in his/her capacity as a private citizen, may speak at public hearings and write to elected officials about a proposed power line that will be located about one quarter mile from the judge’s house (see Opinion 06-93); voice his/her opinion at a Planning Board meeting about a proposal to re-zone commercial property located near property owned by the judge (see Opinion 92-21 [Vol. IX]); publicly give an opinion at local municipal board meetings concerning community matters that affect the judge’s personal interests (see Opinion 02-41); and speak about a proposed zoning change at various public forums to the extent that the proposed zoning change will affect the judge’s property (see Opinion 02-116). A judge also may write to the State Division of Transportation to express support for installation of a traffic light to ease congestion on a road near the judge’s home and may write a letter to the State Liquor Authority opposing renewal of a liquor license for an establishment located near the judge’s home (see Opinion 04-24).

           Similarly, if the natural gas drilling will affect the inquirer’s property, he/she may speak about it as a private citizen at public hearings and write to elected officials to express his/her opinion on the subject (see Opinion 06-93). When writing letters addressing public officials or drilling company officers concerning natural gas drilling, the inquirer should not use official stationery or refer to his/her quasi-judicial office (see id.).

         Regarding disqualification, the inquirer should disqualify him/herself in any matter involving individuals employed by the drilling company for the duration of the inquirer’s anti-drilling advocacy. Such disqualification is subject to remittal except where a litigant is self-represented (see Opinion 01-07).