Opinion 16-85
June 16, 2016
Digest: A judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature. The Committee cannot answer additional questions about the judge’s public expression, as they are vague, subject to multiple factual variations.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(6); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(C)(3)(b)(i), (iv); 100.4(D)(5); 100.5(A)(1); 100.5(A)(1)(c)-(d); Opinions 15-188; 15-103; 15-92(A); 15-79; 13-24; 12-184; 09-53; 02-41; Republican Party of Minn. v White, 536 US 765 (2002); McIntyre v Ohio Elections Commn., 514 US 334 (1995); Matter of Watson, 100 NY2d 290 (2003); Matter of Raab, 100 NY2d 305 (2003); People v Duryea, 76 Misc 2d 948 (1974), affd 44 AD2d 663 (1st Dept 1974).
Opinion:
The inquiring judge, seeking clarification of what he/she characterizes as a “blurred” line between First Amendment rights and the restrictions placed on sitting judges in New York, asks whether he/she may (1) engage anonymously in otherwise prohibited political activities, such as printing and mailing partisan political literature, if no one can link these acts to the judge; (2) publish information about his/her personal religious beliefs; or (3) publish his/her personal views on the national or local economy.
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 integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and therefore all extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).
However, a judge may generally speak, write, and otherwise participate in extra-judicial activities subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). A judge may be a member or non-legal advisor of a not-for-profit religious organization (see 22 NYCRR 100.4[C][3]), but may not “personally participate in the solicitation of funds or other fund-raising activities” or permit the prestige of judicial office to be used for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][i], [iv]). With exceptions not relevant here, a judge must not directly or indirectly engage in any partisan political activity (see 22 NYCRR 100.5[A][1]; 100.5[A][1][c]-[d]).
As a threshold matter, the Committee must decline this judge’s invitation to interpret the federal and state constitutions. Courts have, of course, addressed First Amendment concerns in the judicial election context (see e.g. Republican Party of Minnesota v White, 536 US 765 [2002]; Matter of Watson, 100 NY2d 290 [2003]; Matter of Raab, 100 NY2d 305 [2003]) and elsewhere (see e.g. McIntyre v Ohio Elections Commn., 514 US 334 [1995]; People v Duryea, 76 Misc2d 948 [1974], affd 44 AD2d 663 [1st Dept 1974]). However, the Committee “is not authorized to construe provisions of the Constitution, since that is a question of law rather than of ethics” (Opinion 15-188). Instead, we “must apply the Rules Governing Judicial Conduct in their current form” (id.).
1. “[M]ay a Judge anonymously engage in otherwise prohibited political activities, so long as the only person aware of the activities is the Judge [him/her]self? Example: anonymously printing and mailing partisan political literature.”
Concealing one’s name and judicial status does not ordinarily render prohibited conduct permissible (see Opinion 15-103 [a judge may not write a review of his/her lawyer’s services for use on a public website, even if the review is anonymous and makes no reference to the writer’s judicial office]).1 Even assuming the judge could operate in perfect secrecy, anonymously printing and mailing partisan political literature would violate the rule against “directly or indirectly” engaging in partisan political activity, which contains no exception for anonymous conduct (see 22 NYCRR 100.5[A][1]; 100.5[A][1][c]-[d]).
And if, as is quite likely in modern politics, the public learned that a judge was attempting to conceal his/her impermissible political activity, that would only exacerbate the resulting appearance of impropriety.
2. "Is a sitting Judge prohibited from publishing information about his or her personal religious beliefs?"
The Committee cannot meaningfully respond to Question 2, as it is “vague and subject to multiple factual variations” (Opinion 09-53; see also Opinion 13-24 [an inquiry regarding disqualification based on the judge’s spouse’s “substantial business dealings” with various unspecified persons “is too vague and general for the Committee to provide detailed advice on the judge’s obligations regarding every possible factual scenario”]). Certainly, in many extra-judicial contexts where there is no fund-raising, a judge may express his/her religious beliefs in a manner that does not violate generally applicable rules concerning judicial speech and conduct (see e.g. Opinions 15-92[A] [judge may preach a sermon at his/her religious institution and permit it to be broadcast on the internet]; 15-79 [judge may lead a prayer in a National Day of Prayer radio broadcast]). But, the present question provides insufficient information about the proposed conduct to permit an answer.
3. "Is a sitting Judge prohibited from publishing opinions about the economic state of the Country or a given municipality?"
Question 3 is also too vague and subject to multiple factual variations for the Committee to answer. The rule permitting judges to write and speak publicly (see 22 NYCRR 100.4[B]) is subject to the rest of Part 100. In some circumstances, it may be possible for a judge to express his/her views on the economy, as an extra-judicial activity, without violating the restrictions on political activity or other generally applicable rules concerning judicial speech and conduct (see e.g. Opinion 12-184 [on the facts presented, a quasi-judicial employee who has developed a plan for national economic recovery may send it to the President of the United States]). But without additional context, the Committee cannot help this judge discern which specific rules will be most relevant to his/her proposed activity. For example, if the judge wishes to speak or write publicly on controversial matters that do not directly affect his/her own personal interests, the analysis may be very fact-specific (see e.g. Opinions 15-188; 02-41).
Finally, for the benefit of future inquirers, we also repeat our recent comment in Opinion 15-188:
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 Indeed, the Rules expressly prohibit much conduct that would presumably take place “in secret” and away from public view if it occurred at all, such as engaging in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and accepting improper gifts (see 22 NYCRR 100.4[D][5]).