Opinion 16-55

June 16, 2016

Digest:         (1) Absent a legal requirement, a town justice must not sign a statement (a) acknowledging an obligation to comply with a town ethics code, or otherwise agreeing to be bound by such code where it is more stringent than the Rules Governing Judicial Conduct, or (b) acknowledging that willful violation of the town ethics code may be a basis for suspension, dismissal, or removal, or otherwise agreeing to allow the town board remove, suspend, or dismiss the judge. (2) A judge who determines in good faith that he/she is legally required to sign such a statement may do so without violating the Rules Governing Judicial Conduct.

Rules:          NY Const, arts III; IV; VI; VI § 20(c); VI §§ 22-24; Judiciary Law § 212(2)(l); Uniform Justice Court Act § 2103; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1); Opinions 15-188; 14-34; 09-137; 01-127.

Opinion:

         A town board has adopted an ethics code, which is intended to apply to town justices as well as non-judicial town officials or employees. The ethics code expressly states that town justices “shall be subject to the conditions of both codes” – i.e. the town ethics code and the Rules Governing Judicial Conduct – “and the more stringent standards will apply.” The inquiring town judge asks if he/she may, at the town board’s request, sign a statement (1) certifying that “I … fully understand my responsibility to comply with the guidelines stated in” the town ethics code and (2) “acknowledge that any willful violation of these guidelines may be cause for suspension or dismissal from Town employment or removal from Town office”?

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). A judge must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]); and must respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]).

1. May a Town Judge Agree to Be Bound By the Town Ethics Code If “More Stringent” Than the Rules Governing Judicial Conduct?

         The state constitution provides that “judges of district, town, village or city courts outside the city of New York” shall be “subject to such rules of conduct not inconsistent with laws as may be promulgated by the chief administrator of the courts with the approval of the court of appeals” (NY Const, art VI § 20[c]; accord, Uniform Justice Court Act § 2103).

         That is, the Rules Governing Judicial Conduct have been promulgated pursuant to authority constitutionally vested in the very highest levels of the judiciary itself.¹ This is a critical fact, in the Committee’s view, because the Rules necessarily reflect significant policy choices based on extensive institutional experience with the administration of justice and all aspects of court operations. As a result of these policy choices, the Rules may simultaneously be “more stringent” in certain areas, and “more lenient” in other areas, than lawyers or the general public might otherwise expect.

         The Committee therefore believes a town judge’s voluntary submission to a town ethics code, which may arguably be “more stringent” in some ways than the Rules Governing Judicial Conduct, would be ethically inappropriate as it would impinge on the independence of the judiciary (see 22 NYCRR 100.1).

2. May a Town Judge Agree to Allow the Town Board To Remove, Suspend, or Dismiss Him/Her for Specified Conduct?

         The state constitution establishes the state’s three branches of government (see NY Const, arts III, IV, VI) and vests specific bodies with authority to discipline, remove, or impeach judges (see NY Const, art VI §§ 22-24). In light of this constitutional scheme, the Committee believes that a town judge’s voluntary submission to the authority of the town board for discipline and/or removal would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence (cf. Opinions 15-188 [“a judge’s public extra-judicial involvement in debates concerning redistricting could raise serious separation-of-powers concerns”]; 01-127 [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”]).

         Also, voluntarily signing the proposed statement would, at the very least, create an impression the town board is in a special position to influence the court – not merely through due exercise of its budgetary powers, but also through an ad hoc disciplinary process as the town board or its agents interpret an ethics code they themselves have promulgated (see 22 NYCRR 100.2[C]).

Conclusion 

         Therefore, absent a legal requirement, the inquiring town justice must not sign a statement (a) acknowledging an obligation to comply with a town ethics code, or otherwise agreeing to be bound by such code where it is more stringent than the Rules Governing Judicial Conduct, or (b) acknowledging that willful violation of the town ethics code may be a basis for suspension, dismissal, or removal, or otherwise agreeing to let the town board remove, suspend, or dismiss the judge.

         Of course, the Committee cannot determine whether the inquiring judge is legally required to sign the proposed statements (see Judiciary Law § 212[2][l]). Nonetheless, a judge is not ethically required to defer to the legal views of another branch of government (see Opinion 14-34). Indeed, a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically (see e.g. Opinion 09-137 [“a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge's statutory interpretation was erroneous”]).

         Therefore, if the judge determines in good faith that he/she is legally required to sign the statement, he/she may do so without violating the Rules Governing Judicial Conduct.

         Conversely, if the judge determines in good faith that he/she is not legally required to sign such a statement, he/she must not do so unless and until required by court order or other appropriate legal mandate. As the Committee has previously noted, “any questions concerning the correctness of the judge’s interpretation of the law, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 14-34 [internal quotation marks and citation omitted]).

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         ¹ While the judiciary alone is authorized to adopt rules of conduct for judges, the constitution provides for an independent agency (with members appointed by all three branches of government) to enforce those rules (compare NY Const, art VI § 20[c] with NY Const, art VI § 22[b]).