Opinion 17-142
October 19, 2017
Digest: A town justice (1) may not directly or indirectly oppose a candidate for non-judicial public office, including by distributing handouts about the other candidate’s actions or qualifications; (2) may comment on, testify about, or otherwise publicly oppose a proposal to reduce the town court to a single justice; and (3) may, as a candidate for judicial office, respond to attacks on the judge’s record, so long as any such response is made truthfully and without distortion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(e); 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); 100.5(A)(4)(e); Opinions 13-17; 12-129(E)-(F); 10-117; 10-63; 09-162; 09-50; 02-94; 90-16; 2007 Ann Rep of NY Commn on Jud Conduct 115.
Opinion:
The inquiring town justice and the town supervisor are both seeking re-election this year. The judge wishes to inform voters of certain actions the town supervisor has taken, so they can “make an informed choice.” Among other things, the judge believes the town supervisor has improperly and “continually meddled with” the town court. As described in the inquiry, the complained-of conduct includes: unilaterally replacing, or in one instance, attempting to replace, court personnel over the objection of one or both justices; filing disciplinary complaints against the justices, which were dismissed after investigation; making unfounded accusations about the judge at town board meetings; and introducing and advocating for a resolution to reduce the town court to a single justice. Believing that if “this totally unsuitable supervisor is re-elected,” there will be “four more years of this constant meddling,” the judge asks if he/she may “document what is going on,” as it is “all in the official minutes” of town board meetings, and whether he/she may “distribute handouts” or take any other action.
1. Distributing Handouts About the Town Supervisor
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge is generally prohibited from directly or indirectly engaging in political activity except as expressly permitted (see 22 NYCRR 100.5[A][1]), and must not publicly endorse or oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]).
As this judge is not running against the town supervisor, he/she may not publicly oppose the supervisor’s candidacy, even indirectly (see Opinion 10-117). Moreover, publicly commenting on another candidate’s qualifications is tantamount to publicly opposing the candidate (see id. [citations omitted]). Thus, although this judge may, of course, obtain and retain, for his/her own information, publicly available minutes of town board meetings, the judge must not “distribute handouts” about, or otherwise publicly “document,” the supervisor’s purported improprieties in an effort to sway voters against the supervisor.
2. Commenting on a Proposal to Change the Number of Town Justices
A judge may, however, engage in certain political activity on behalf of measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]) and thus may, publicly comment on legislative action to create or dissolve judgeships (see Opinions 10-63 [town justice may circulate petition seeking referendum on town board resolution eliminating the judge’s judicial position]; 09-50 [village justice may comment publicly on village board’s vote to dissolve village court, subject to permissive referendum]; 02-94 [town justice may attend public meeting held by town board to speak about proposal to replace two part-time town justices with one full-time and one part-time justice]; 90-16 [part-time judge may publicly oppose resolution by local municipal board that would create new judgeship, subject to public referendum]).
Accordingly, should this judge wish to comment on, testify about, or otherwise publicly oppose the proposal to reduce the number of town justices, he/she may do so, mindful of the prohibition on directly or indirectly opposing any political candidate who might take a contrary view (cf. Opinion 13-17 [a judge may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator]).
3. Responding to Attacks on the Judge’s Record, as a Candidate
A judge who is a candidate for public election to judicial office must maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][4][a]). However, a candidate judge may respond to attacks on his/her record (see 22 NYCRR 100.5[A][4][e]), provided he/she does not knowingly make any false statement or misrepresent the identity, qualifications, current position, or other fact concerning the candidate or an opponent (see 22 NYCRR 100.5[A][4][d][iii]).
In this judge’s campaign for re-election, he/she may answer attacks to his/her record, but the response must be true, without distortion (see Opinions 12-129[E]-[F] [campaign statements must be “entirely truthful and not in any way misleading”]; 09-162 [campaign statements must be made “truthfully, and without distortion, about matters of public record regarding themselves”]). Thus, a judicial candidate “should take particular care to ascertain the truth of all claims he/she makes about his/her opponents and be careful not to create a false impression of an opponent’s record by omitting relevant facts” (Opinion 12-129[E]-[F], citing 2007 Ann Rep of NY Commn on Jud Conduct 115 at 117).