Opinion 14-139

September 4, 2014

Digest:         A judge may publicly express his/her views on how certain proposed transit changes will affect indigent court users and their ability to comply with court-ordered training, treatment, and probation, as these issues directly implicate the law, the legal system and the administration of justice.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(1); 100.4(C)(3)(b)(I), (iii); 100.5(A)(iii); Opinions 14-164; 13-63; 13-17; 09-50; 08-73; 07-109; 02-10; 99-158 (Vol. XVIII); 96-41 (Vol. XIV); 90-181 (Vol. VI).

Opinion:

         A part-time judge asks whether he/she may publicly express his/her views on a proposal to increase transit fares and eliminate courthouse stops on certain local transit routes.¹ Specifically, the judge hopes to “secure funding for [transit] passes for indigent defendants and ex-offenders, and thereby remove transportation as an obstacle to attending court, probation appointments, treatment sessions and job-readiness training.” The judge proposes to further these aims by (1) writing letters to the transit authority and sending copies to the media; (2) meeting with transit authority representatives; and (3) speaking at upcoming public hearings on these issues.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In general, a judge may not personally participate in soliciting funds or in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]), but a judge may nonetheless make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]). Likewise, judges may appear at public hearings before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1])² and may even, subject to certain limitations, engage in limited 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]).³

         Accordingly, the Committee has advised that a judge may write to legislators expressing his/her views on reduced funding for county mental health services in light of the anticipated adverse impact on court operations (see Opinion 99-158 [Vol. XVIII]); on proposed legislation affecting retirement benefits for non-judicial court employees (see Opinion 96-41 [Vol. XIV]); and on proposed legislation that would grant peace officer status to a court officer (see Opinion 02-10) or change the position of district attorney from part-time to full-time (see Opinion 90-181 [Vol. VI]). Similarly, the Committee has advised that a judge may meet privately with a state legislator to discuss pending legislation that proposes judicial upgrades for certain New York State courts (see Opinion 13-63) and may publicly comment on a municipal board’s vote to dissolve the local court (see Opinion 09-50), as such issues likewise directly affect the law, the legal system and the administration of justice.

         In furtherance of such aims, a judge may seek to influence public opinion by, for example, writing an op-ed article for publication in the local press and speaking at public informational forums (see Opinion 07-109 [need for a bond resolution to fund a new court facility]) or speaking at a public legislative budget hearing (see Opinion 14-164 [impact of reducing the sheriff department’s budget on court operations]).

         In the present inquiry, the judge’s proposed comments and advocacy are similarly focused on how certain transit changes will affect indigent court users and their ability to comply with court-ordered training, treatment, and probation, issues which directly implicate the law, the legal system and the administration of justice within the meaning of the Committee’s prior opinions (see Opinions 14-164; 13-63; 09-50; 07-109; 02-10; 99-158 [Vol. XVIII]; 96-41 [Vol. XIV]; 90-181 [Vol. VI]). The judge’s proposed methods of expressing his/her views on this topic are also consistent with those the Committee has previously approved and are, therefore, permissible (see e.g. Opinions 14-164; 07-109; 22 NYCRR 100.4[C][1]).

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         ¹Although the judge states that he/she would engage in these activities through a not-for-profit organization he/she has created, the judge expects to “be the face of” the organization for this purpose.

           ²For full-time judges, this is an exception to the general rule prohibiting such appearances (see 22 NYCRR 100.4[C][1]).

         ³It may be helpful to seek guidance from the Committee before undertaking partisan political activity in support of measures to improve the law, the legal system or the administration of justice (see e.g. Opinions 13-17 [judge may not sign petition framed as a partisan political initiative designed to garner statements of public support for a particular legislator]; 08-73 [judge may not establish a political action committee]).