Opinion 15-188
January 28, 2016
Digest: (1) The Committee cannot suspend the Rules Governing Judicial Conduct or issue legal opinions interpreting the state and federal constitutions. (2) On request for reconsideration, the Committee reaffirms its prior opinions advising that a judge may not take part in certain public activities regarding redistricting.
Rules: US Const, 1st Amend; NY Const art I, § 8; art VI, §§ 20(b); 20(b)(1)-(2); 22(a); 28(b)-(c); art XIX, § 2; Judiciary Law §§ 42; 212(2)(b), (l); 22 NYCRR 100.0(S); 100.2; 100.2(A); 100.3(B)(8); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.5(A)(1)(i)-(iii); 100.5(A)(1)(a), (c)-(h); 100.5(A)(2)-(7); 100.5(B); 101.1; 101.3; Opinions 15-139/15-140; 15-77; 14-123; 13-189/14-02; 13-17; 11-87; 10-133; 09-244; 08-220/08-222; 08-73; 05-105/05-108/05-109; 01-127; 01-65; 96-146; 92-106; 92-74; 89-55; Shapiro v McManus, 136 S Ct 450 (2015); Arizona State Legisl v Arizona Indep Redistricting Commn, 135 S Ct 2652 (2015); Alabama Legisl Black Caucus v Alabama, 135 S Ct 1257 (2015); Republican Party of Minnesota v White, 536 US 765 (2002); Matter of Raab, 100 NY2d 305 (2003); Matter of Watson, 100 NY2d 290 (2003); Matter of Spargo v New York State Commn on Jud Conduct, 23 AD3d 808 (2005).
Opinion:
A full-time judge who is subject to article VI, section 20(b) of the state constitution1 asks the Committee to “reconsider and rescind” two previously published opinions and “suspend the ‘political activity’ rules for judges in New York.” The opinions at issue involve extra-judicial participation in legislative redistricting. The Committee advised that a judge may not publicly advocate for a constitutional amendment regarding legislative redistricting or serve as a moderator of a program on a proposed redistricting amendment (see Opinion 14-123) and may not serve on a panel that will discuss the principles of legislative redistricting and the governing law (see Opinion 10-133). The inquiring judge is not satisfied with the reasoning in these opinions and believes they misinterpret the Rules Governing Judicial Conduct. The judge further argues that the Rules, on their face or as interpreted by the Committee, violate his/her state and federal constitutional rights of free speech (see e.g. US Const, 1st Amend; NY Const art I, § 8; Republican Party of Minnesota v White, 536 US 765 [2002]). The judge asks the Committee to “suspend” and/or “suspend enforcement of” portions of the Rules so he/she may (a) “be an active member of a political party in order to influence party members to vote in favor of a constitutional convention,” (b) “engage in ‘partisan political activity’ in favor of any vote - yes or no - on the convention referendum,” (c) “permit a political organization to use the judge’s name in advocating for or against a convention,” (d) “make speeches on behalf of a political party supporting or opposing a convention,” (e) “attend political gatherings if the subject of a convention is discussed,” and (f) “solicit funds, directly or indirectly, in support of or in opposition to, the convention referendum or their candidacy as a delegate to the convention.”
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 generally speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limitations in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, a judge must conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A sitting judge must not directly or indirectly engage in any political activity, except (i) as otherwise authorized by section 100.5 or by law, (ii) to vote and be identified as a member of a political party, or (iii) 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]). Among other specific prohibitions, a judge may not act as a leader in a political organization (see 22 NYCRR 100.5[A][1][a]); engage in any partisan political activity except as expressly permitted (see 22 NYCRR 100.5[A][1][c]);2 permit his/her name to be used in connection with activities of a political organization (see 22 NYCRR 100.5[A][1][d]); solicit funds for, or make a contribution to, a political organization or candidate (see 22 NYCRR 100.5[A][1][h]); make speeches on behalf of a political organization or another candidate (see 22 NYCRR 100.5[A][1][f]); or attend political gatherings (see 22 NYCRR 100.5[A][1][g]).
Constitutional Claims
The inquirer’s constitutional claims concerning the Rules Governing Judicial Conduct are far from being established. Following the United States Supreme Court’s decision in Republican Party of Minnesota v White in 2002, New York State appellate courts have considered, and rejected, claims that certain judicial conduct rules prohibiting partisan political activity impermissibly restrict a judge’s freedom of speech (see Matter of Raab, 100 NY2d 305, 313-16 [2003]; Matter of Watson, 100 NY2d 290, 303 [2003]; Matter of Spargo v New York State Commn on Jud Conduct, 23 AD3d 808, 809 [2005]) or are unconstitutionally vague (see Spargo, 23 AD3d at 810). The inquirer is therefore asking the Committee itself to interpret the federal and state constitutions. The Committee “is not authorized to construe provisions of the Constitution, since that is a question of law rather than of ethics” (Opinion 92-106; see also Opinion 11-87 [the Committee cannot “opine on issues of constitutional or statutory interpretation”]).
Request to Suspend Political Activity Rules
Nor does the Committee have the power to “suspend” any portion of the Rules Governing Judicial Conduct, which were promulgated pursuant to constitutional and statutory authority (see NY Const art VI, §§ 20[b]; 28[b]-[c]; Judiciary Law § 212[2][b]). The statute and rules establishing the Committee “authorize [it] to render confidential ethical advisory opinions ... to judges or justices who solicit its advice” concerning the Rules as promulgated (Opinion 92-74; Judiciary Law § 212[2][l]; 22 NYCRR 101.1; 101.3). They do not grant the Committee authority to “suspend” the Rules (see generally Opinions 08-220/08-222 [the Committee “has no jurisdiction to change” a rule]; 89-55 [the Committee cannot “change” a rule]; 15-139/15-140 [declining to reconsider a prior opinion, “[a]bsent an administrative order or rule change” permitting the described conduct]). Likewise, the Committee cannot “suspend enforcement of” the Rules, as its role involves “issu[ing] advisory opinions” to judges and justices of the Unified Court System (see Judiciary Law § 212[2][l]; 22 NYCRR 101.3) and it “has no investigatory or disciplinary powers or functions of any kind” (Opinion 92-74).3
Request for Reconsideration of Redistricting Opinions
As discussed, the Committee must apply the Rules Governing Judicial Conduct in their current form. Doing so, we reaffirm the opinions in question.
Redistricting always has been, and remains an inherently political and intensely controversial subject, presumably because the way legislative districts are drawn affects the balance of power between partisan political parties. Given the political interests at stake, redistricting frequently results in litigation, and it is not unusual for such claims to reach the United States Supreme Court.4
Inquiry 14-123 was submitted and the Committee’s response to it was issued shortly before a statewide vote on a proposal to amend the state constitution to change the way electoral districts are drawn. While the inquirer describes the proposal as “non-partisan,” the election was in fact highly contentious, dividing on party lines. A state court had ordered deletion of the word “independent” from the ballot’s description of the proposed redistricting procedures. The proposal was supported by the Citizens Union and the League of Women Voters and opposed by Common Cause of New York and the New York Public Interest Group (see Sam Roberts, Ballot Item Would Reform Redistricting, at Least in Theory, NY Times, Oct. 12, 2014, at A16).
This historical context makes clear that a judge’s publicly weighing in on such sharply contested and highly politicized issues would violate the rule barring a judge from directly or indirectly engaging in partisan political activity (see 22 NYCRR 100.5[A][1][c]). Legislative redistricting is not related to “the law, the legal system or the administration of justice” in any conventional sense or meaning those terms have in the judicial ethics field or context (22 NYCRR 100.5[A][1][iii]). To the contrary, redistricting is generally perceived as an exercise of legislative or political power (see e.g. Arizona State Legisl, supra, 135 S Ct at 2672 [“our precedent teaches that redistricting is a legislative function”] [emphasis supplied]). Therefore, a judge’s voluntary involvement with redistricting would readily create an appearance that he/she was using the prestige of judicial office to advance the private and/or political interests of others (see 22 NYCRR 100.2[C]) and could cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]).5
As the Court of Appeals stated (Raab, supra, 100 NY2d at 313 [footnote and paragraph breaks omitted]):
litigants have a right guaranteed under the Due Process Clause to a fair and impartial magistrate and the State, as the steward of the judicial system, has the obligation to create such a forum and prevent corruption and the appearance of corruption, including political bias or favoritism. The importance of these fundamental precepts in maintaining public confidence in the judicial system is firmly established: “the State has an overriding interest in the integrity and impartiality of the judiciary...”
These fundamental precepts firmly underlie this Committee’s continuing concern over the engagement of judges in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial (see e.g. Opinions 01-65 [it is inappropriate for a judge to be directly or indirectly involved in “partisan political issues” or “issues of public controversy”]; 15-77 [noting that a judge may join Planned Parenthood, provided such membership does not involve the judge in organizational litigation or in public association with organizational positions on matters of public controversy, and may contribute to Planned Parenthood, unless the funds are for a political action committee or other political arm of the organization]). This reasoning clearly excludes a judge from advocating for passage of a redistricting amendment, and from moderating or participating in a panel discussion concerning redistricting. Moreover, to the extent redistricting is primarily a legislative function, the Committee believes a judge’s public extra-judicial involvement in debates concerning redistricting could raise serious separation-of-powers concerns (see generally 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]); Opinion 01-127 [noting that a town judge’s exercise of the powers and duties of the town clerk would “raise serious questions concerning the separation of powers and the independence of the judiciary”]).
The rule permitting judges to speak, write and teach, on which the inquirer relies, does not override other provisions of the Rules Governing Judicial Conduct, but must instead be read in harmony with them (see 22 NYCRR 100.4[B]). As previously noted, the exception allowing political activity on behalf of measures to improve the law, the legal system or the administration of justice does not apply to legislative redistricting (see 22 NYCRR 100.5[A][1][iii]; compare Opinion 13-189/14-02 [a judges’ association may not publicly support repeal of a gun control law in its entirety, but may support a change in specific provisions that affect the administration of justice] with Opinion 09-244 [a judge may participate in the public debate regarding the need for a constitutional convention to reform the judiciary, as that concerns the law, the legal system and the administration of justice]).
Of course, even when a judge is engaging in political activity on behalf of measures to improve the law, the legal system or the administration of justice, some limits still apply. For example, a judge still may not publicly comment on pending or impending cases in the United States or its territories 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 Opinion 09-244; 22 NYCRR 100.3[B][8]; 100.4[A][1]-[3]). Likewise, the Committee has advised that a judge may not form a political action committee, even to advance and influence legislative initiatives that affect the courts and the judiciary (see Opinion 08-73). The Committee explained that the judge must not do indirectly what he/she cannot do directly, such as “engag[ing] in such politically partisan activities as publicly endorsing or opposing candidates for public office and soliciting funds that would be used to support or defeat candidates for political office” (id.; 22 NYCRR 100.5[A][1]; 100.5[A][1][e], [h]). The Committee has also distinguished between publicly supporting a change in the law, which is permissible for a judge, and publicly supporting a specific legislator, which is not (see Opinion 13-17).
Finally, the judge argues that Opinions 14-123 and 10-133 are inconsistent with section 20(b), which permits certain judges to be delegates to a constitutional convention (see generally NY Const art VI, § 20[b][1]-[2]; 22 NYCRR 100.5[B]; Opinion 96-146).6 The judge argues that the role of constitutional delegate entails discussing political and controversial matters that are not necessarily related to improving the law, the legal system or the administration of justice.
There is no inconsistency. The provision on delegates is an exception to section 20(b)’s overall prohibition against certain judges serving in public offices outside the judiciary or engaging in other specified extra-judicial activities. After this section was enacted, it was further amended to provide that these judges “shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts” (NY Const art VI, § 20[b]). Thus this section, read as a whole, provides that judges are governed by prescribed rules of conduct, but at limited times (the last was in 1967) some of those rules are suspended for a limited number of judges to allow them as delegates to contribute their wisdom and experience, gained as members of one of the three branches of government, to the framing of new constitutional provisions, some of which may or may not relate to the administration of justice.
However, this judge is not currently serving as a constitutional delegate, nor can he/she be an announced candidate for election to a delegate position for a constitutional convention, as no constitutional convention has been scheduled.7 Under these circumstances, it would be “hypothetical and premature” to comment on what activities this judge might potentially “engage in for the purpose of securing the nomination and election to that position” (see Opinion 96-146), let alone the scope of permissible activities if he/she were eventually elected to serve as a delegate.
As the inquiring judge has not raised any convincing arguments as to why Opinions 14-123 and 10-133 should be rescinded, the Committee reaffirms these prior opinions advising that a judge may not take part in certain public activities regarding redistricting.
One final comment may be helpful to future inquirers. It is unnecessarily difficult for the Committee to provide meaningful guidance without a clear description of the proposed conduct. Therefore, we ask judges who wish to obtain guidance on a proposed future course of action to provide factual details concerning the judge’s current situation and the specific conduct the judge is considering.
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1 This provision applies to a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article” (NY Const art VI, § 20[b]).
2 Although not germane to the present inquiry, this subparagraph specifically states that “nothing in this section shall prohibit a judge ... from participating in his or her own campaign for elective judicial office” (see 22 NYCRR 100.5[A][1][c]), and the bulk of Section 100.5 delineates permissible activity in the course of a such a campaign (see generally 22 NYCRR 100.5[A][2]-[7]).
3 The Commission on Judicial Conduct, not this Committee, is “the authority vested with the responsibility of investigating complaints regarding the conduct of judges” (Opinion 05-105/05-108/05-109; see also Opinion 92-74 [the Commission on Judicial Conduct is “an entirely separate entity”]; see generally NY Const art VI, § 22[a] [“The commission on judicial conduct shall receive, initiate, investigate and hear complaints...”]; Judiciary Law § 42 [describing the functions, powers and duties of the Commission on Judicial Conduct]).
4 Last year alone, the United States Supreme Court issued at least three opinions on redistricting (see Shapiro v McManus, 136 S Ct 450 [2015] [unanimously reversing and remanding for claims to be heard in a three-judge court]; Arizona State Legisl v Arizona Indep Redistricting Commn, 135 S Ct 2652 [2015] [5-4 split]; Alabama Legisl Black Caucus v Alabama, 135 S Ct 1257 [2015] [5-4 split]), and heard arguments on at least two more redistricting cases (docket nos. 14-940 and 14-232).
5 The inquiring judge’s proposed involvement is “voluntary” in the sense that he/she is not being asked to hear and decide legal issues involving redistricting as raised and briefed by the parties in a case that is properly before him/her.
6 Judges subject to section 20(b) generally may not “hold any other public office or trust,” but they may be a “member of a constitutional convention” (NY Const art VI, § 20[b][1]). Such judges are also constitutionally ineligible “to be a candidate for any public office other than judicial office or member of a constitutional convention, unless he or she resigns from judicial office” (id. § 20[b][2]). The Rules extend the resign-to-run rule to all judges, as a matter of ethics, and preserve the exception (see 22 NYCRR 100.5[B] [a judge “may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so”]).
7 A referendum on whether to hold a constitutional convention is held every twenty years, with the next one scheduled for 2017 (NY Const art XIX, § 2).