Opinion 13-22

March 14, 2013

Digest:         A judge who is not in his/her window period for election may not participate in a politically sponsored sporting event in which one local political party’s team will compete against another local political party’s team, where the purpose of the event is to improve both parties’ public image.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5 (A)(1)(I)-(iii); 100.5(A)(1)(d); 100.5(A)(1)(g); 100.5(A)(2).

Opinion:

         A judge who is not in his/her window period asks whether he/she may participate in an informal, friendly sporting event organized by two local political parties. The judge states that the event is not a fund-raiser and is not in furtherance of a partisan political purpose. Rather, the game’s purpose is to demonstrate publicly that party members on both sides of the aisle can put their differences aside and play together. The judge has also provided a copy of a newspaper article about a similar event held in a previous year. Among other things, the article identifies by name several participants who were running for election at the time.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes the public’s confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Generally, a sitting judge is prohibited from engaging either directly or indirectly in any political activity except in furtherance of his/her own campaign for election or re-election during the applicable window period (see 22 NYCRR 100.5[A][1]-[2]; 100.0[Q] [defining “Window

Period”]).¹ Therefore, a judge who is not a candidate within his/her window period must not attend political gatherings (see 22 NYCRR 100.5[A][1][g]), and must not permit his/her name to be used in connection with any activity of a political organization (see 22 NYCRR 100.5[A][1][d]).

         The Committee notes that the goal of the event, i.e., to demonstrate that party members on both sides of the aisle can put their differences aside and play together, is political in nature in that it seeks to improve the public image of both parties.² The Committee notes that the event appears to be specifically designed to attract media coverage, whether to address constituents’ concerns about political gridlock or to allow party members who are currently seeking election to gain favorable press coverage. Thus, under the circumstances presented, this politically sponsored sporting event is a political gathering in which a sitting judge, outside his/her window period, should not participate. Therefore, the inquiring judge, who is not within his/her Window Period, is prohibited from participating in the event (see 22 NYCRR 100.5[A][1][g]).

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     ¹ A sitting judge may nonetheless vote and identify him/herself as a member of a political party and may engage in political activities as authorized by law and on behalf of measures to improve the law, the legal system or the administration of justice; (see 22 NYCRR 100.5[A][1][I]-[iii]).

     ² Although the event appears to be bi-partisan, it cannot be said to be truly non-partisan, as it includes only two of the six ballot-qualified parties in New York.