Opinion 13-17

March 14, 2013

Digest:         A judge may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(c)-(e), (h); Opinions 11-29; 09-244; 09-226; 08-73; 08-09.

Opinion:

         The inquiring judge asks whether he/she may, as a private citizen, sign his/her name to a petition sponsored and promoted by an individual legislator. The judge states he/she would sign it without divulging” his/her judicial status. Upon reviewing the petition the judge provided, the Committee observes that the petition’s sponsor urges that certain existing laws should be amended to be more consistent with the United States Constitution, and seeks statements of support from the public for his/her efforts to change the law. However, the petition’s wording is such that an individual who signs the petition is not stating directly that he/she supports a change in the law but, instead, that he/she supports the legislator in this effort to change the law.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge must not directly or indirectly engage in any political activity except as authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1][i]). A judge may, subject to certain limitations, engage in political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]). However, even in doing so, a judge must not engage in partisan political activity, other than participating in his/her own campaign for elective judicial office; may not participate in any political campaign for any office or permit his/her name to be used in connection with any activity of a political organization; may not publicly endorse a candidate for public office; and may not contribute to a political organization or candidate (see 22 NYCRR 100.5[A][1][c]-[e], [h]).

         Applying these principles, the Committee has advised that a judge may not form a Political Action Committee to advance legislative initiatives affecting the courts and judiciary, even if permissible for a judge to express views on these subjects through other means (see Opinion 08-73).

         The petition here appears as a partisan political initiative, designed to garner statements of public support for the individual legislator. Thus, under these circumstances, signing it suggests his/her public support of a legislator’s partisan political initiative. Thus, judge should not sign the petition.

         The Committee notes that, if the judge believes a particular change in the law will strengthen certain constitutional rights, he/she may express his/her views on this matter in other ways (see e.g. Opinion 08-73 [discussing prior opinions and permissible alternatives]; see also e.g. Opinions 11-29 [a judge may co-chair a bar association’s subcommittee to address the issue of “Brady” disclosure and related Brady issues, where the group intends to comment on prospective legislation and perhaps create protocols to further “Brady’s”goals]; 09-244 [a judge may publicly debate the need for a constitutional convention to reform the New York Judiciary, with certain limitations]; 09-226 [magistrates’ association members may urge the association to petition the state legislature to repeal a law mandating collection of surcharges in local courts]; 08-09 [a judge may join, support, and participate in an organization formed to seek a change in the law that would enable more non-relative victims of domestic violence to obtain civil orders of protection in Family Court]).

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     ¹ The language directly above the area for signature states “YES [name of legislator], I support your efforts” to change the law. The title, headings, and instructions associated with the petition contain similar language, indicating that the petition’s signatories “stand with” the legislator and wish to “help” him/her change the law.