Opinion 16-94

June 16, 2016

Digest:        (1) The Rules do not preclude a part-time judge from running for and serving as delegate to a state constitutional convention, provided governing law permits him/her to do so. (2) A judge may take a public position on whether a constitutional convention should be convened in an upcoming referendum, subject to certain limitations. (3) A judge may lecture on historical constitutional conventions and procedures. (4) As no constitutional convention has been approved or scheduled at this time, questions concerning permissible campaign activities for a judge who wishes to become a constitutional delegate are hypothetical and premature.

Rules:          NY Const art VI, § 20(b)(1); art XIX, § 2; Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(B); 101.1; Opinions 16-60; 15-188; 15-125; 13-158; 09-244; 98-23; 96-146.

Opinion:

         The inquiring part-time judge asks several questions concerning his/her possible future activities in light of New York’s upcoming constitutional convention referendum in November 2017.¹

         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]). Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A][3]). Indeed, a judge’s extra-judicial activities must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge also must not “directly or indirectly engage in any political activity” except as expressly permitted (22 NYCRR 100.5[A][1]). For example, a judge may engage in certain political activities “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]).

1. Seeking Election and Serving as a Constitutional Convention Delegate

         The judge asks whether he/she may seek election to, and serve as, a constitutional convention delegate, without first resigning judicial office.

         Section 100.5(B) (22 NYCRR 100.5[B]) provides:

A judge shall resign from judicial office upon becoming a candidate for elective nonjudicial office either in a primary or in a general election, except that the 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.

This section does not distinguish between full-time and part-time judges; it applies equally to both (see e.g. Opinion 98-23). Thus, the Rules permit a part-time judge to run for and serve as delegate to a state constitutional convention, provided governing law permits him/her to do so (see e.g. Opinion 96-146; NY Const art VI, § 20[b][1] [permitting certain judges who are otherwise barred from holding “any other public office or trust” to serve as a “member of a constitutional convention”]).

         However, the Committee cannot comment on any legal questions (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

2. Publicly Advocating For or Against a Constitutional Convention

         The judge also asks if he/she may take a “public position as to whether a [Constitutional] Convention should be convened, and advocate for same leading up to the 2017 Referendum.”

         In general, the Committee has advised, “a judge may publicly discuss the need for judicial reform and a constitutional convention, as these are matters relating to the law, the legal system or the administration of justice,” although “the traditional limitations on judicial speech remain applicable” (Opinion 09-244). Thus, for example, the judge must not discuss pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B][8]), and the judge’s comments must “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” (Opinion 09-244; 22 NYCRR 100.4[A][1]-[3]).

         In addition, the Committee recently advised against a judge joining a high-profile group to develop detailed proposals for a possible future constitutional convention, where the specific topics under consideration, including legislative redistricting, “go well beyond measures to improve the law, the legal system, or the administration of justice” and could be viewed as “highly controversial and political in nature” (Opinion 16-60; see also Opinion 15-188 [“a judge’s public extra-judicial involvement in debates concerning redistricting could raise serious separation-of-powers concerns,” and would involve the judge “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”]).

         This judge may likewise “publicly discuss the need for judicial reform and a constitutional convention,” and thus advocate for or against holding a constitutional convention, provided such discussion and advocacy is limited to “the law, the legal system or the administration of justice” (Opinion 16-60), and is otherwise consistent with generally applicable limitations on judicial speech and conduct. As described in Opinion 15-188 (citations omitted):

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. 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. 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.” 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.

3. Speaking on Historical Constitutional Conventions and Procedures

         Finally, the judge asks if he/she may “give lectures regarding [New York’s] Constitutional Convention, its processes, etc.” without taking a position about whether or not New York should convene a constitutional convention.

         In general, the Rules permit a judge to lecture on legal matters from an academic or historical perspective. For example, a judge may speak at an academic conference on the topic of international, federal, and state approaches to human rights issues, subject to generally applicable limitations on judicial speech and conduct (see Opinion 15-125). Similarly, a judge may work with a not-for-profit organization to create and produce a video concerning the history and “current capabilities” of the court where the judge serves (see Opinion 13-158).

4. Activities of a Hypothetical Candidate for Delegate

         The judge’s remaining questions all “[p]resum[e] a Convention is convened” and ask what activities would be permissible for a judge who wishes to seek election as a delegate.

         At this time, no constitutional convention has been scheduled; the outcome of the November 2017 referendum remains unknown. Thus, as the Committee advised in Opinion 15-188:

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.

The Committee declines to address this judge’s similar questions, as they are likewise hypothetical and premature.

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         ¹ The Committee understands that, if New York voters decide to convene a convention in November 2017, they will thereafter elect delegates in November 2018, and vote on any proposed amendments in a subsequent general election (see generally NY Const art XIX, § 2).