Opinion 15-65

March 19, 2015

Digest:         A judge has no affirmative duty to object to an unauthorized, anonymous, partisan political use of a letter he/she wrote decades ago in the former capacity of a non-judicial official. However, the judge may do so in the judge’s sole discretion.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1)(c)-(e); Opinions 14-130; 96-145.

Opinion:

         The inquiring judge has become aware a letter he/she wrote and signed decades ago, in his/her then-capacity as a non-judicial public official, is being circulated for political purposes to oppose an individual’s current election campaign. The judge does not know who is responsible, as the letter was obtained and used without the judge’s knowledge or consent, and is being circulated anonymously. The judge has now “heard from several individuals who received [the letter] and who were ‘shocked’ that [the judge] would be involved” in this manner.¹ The judge asks what steps, if any, he/she must take to dissociate him/herself from the letter’s circulation and dispel any appearance the judge is engaged in partisan politics.

         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]). A judge must not publicly endorse or publicly oppose (other than by running against) any candidate for public office, whether directly or indirectly (see 22 NYCRR 100.5[A][1][e]), must not participate in any political campaign for any office (see 22 NYCRR 100.5[A][1][d]), or otherwise engage in partisan political activity other than his/her own campaign for elective judicial office during the applicable window period (see 22 NYCRR 100.5[A][1][c]).

         Under these facts, the judge has not publicly endorsed or opposed the candidate, and had no idea his/her decades-old letter would be used in an election campaign. Thus, the question is whether the anonymous conduct creates such an appearance of impropriety that the judge must take affirmative steps to counteract it. As the Committee has previously noted, “[t]his possibility is not unprecedented, because the Committee has previously advised that a judge has an obligation to object in writing when a not-for-profit organization uses the judge’s name and/or photograph for fund-raising purposes” (Opinion 14-130). Here, however, the letter clearly identifies its original purpose and date of issuance, and does not, on its face, refer to the current election campaign or to the judge’s current judicial status. On these facts, the Committee concludes the unauthorized and anonymous partisan political use of a decades-old letter does not, in and of itself, rise to the level of creating an impression that the judge is currently engaged in impermissible political activity, and therefore the judge is not ethically bound to affirmatively object to use of the letter (cf. Opinion 14-130).

         Nonetheless, the judge is ethically permitted to take action to dissociate him/herself from the letter, if he/she chooses to do so. The judge may, for example, write a letter to the editor explaining that the judge was not involved in the re-release of the letter, and did not authorize its use in the current election (see 22 NYCRR 100.5[A][1][c]-[e]). The Committee presumes that, if the judge chooses to take this action, the judge will not comment on the substance of the letter, and will “scrupulously avoid personalizing comments, refrain from invective, and be objective and dispassionate so as not to detract in any way from the dignity of judicial office” (Opinion 96-145).

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            ¹ Although not expressly stated in the inquiry, the Committee infers that the judge has advised these individuals that he/she was not involved in, and does not approve of, any political use of the letter.