Opinion 17-96

June 15, 2017

Digest:         A JHO may serve on the advisory council for the housing part, which evaluates applicants and makes recommendations to the Chief Administrative Judge’s regarding housing court judges’ appointments.

Rules:          NY Const art VI, § 8(a); 28 USC § 631(a); Civil Court Act § 110(f)-(i); Judiciary Law § 212(1)(d); 22 NYCRR 1.1(e)-(f); 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.5(A)(1); 100.6(A); Opinions 16-47; 15-173; 08-14; 07-156; 07-130; 03-93/04-32; 03-07; 02-113; 02-26; 02-07; 94-37.

Opinion:

         A judicial hearing officer (JHO), presiding in landlord/tenant matters in Civil Court, asks if he/she may accept appointment by the Chief Administrative Judge to be a member-at-large on the advisory council for the NYC Civil Court’s housing part (see generally Civil Court Act § 110[f]-[h]).¹ By statute, the advisory council assists the judiciary in selecting new housing court judges. It conducts initial pre-screening interviews and evaluations and compiles a list of qualified applicants. The Chief Administrative Judge appoints new housing court judges from the council’s list (see Civil Court Act § 110[f]).² Also, members visit the housing part periodically to review its functioning and make recommendations to the Chief Administrative Judge and the council (see id. § 110[h]). The council prepares an annual report on the housing part’s operations and submits it to specified officials in all three branches of government (id.).

         As quasi-judicial officials, JHOs must comply with the Rules Governing Judicial Conduct in their judicial duties, and otherwise must, so far as practical and proper, use the rules to guides their conduct (see 22 NYCRR 100.6[A]; Opinions 07-156; 03-07). Thus, a JHO 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 JHO’s extrajudicial activities must not cast doubt on his/her capacity to act impartially as a JHO, must not detract from the dignity of the office and must not interfere with the proper performance of quasi-judicial duties (see 22 NYCRR 100.4[A][1]-[3]). In appropriate circumstances, judges and quasi-judicial officials may accept appointments to government committees or commissions concerned with the law’s improvement, the legal system and the administration of justice (see 22 NYCRR 100.4[C][2][a]). However, they must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), nor “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).

         Neither a full-time judge nor a JHO may serve on a mayor’s Committee on the Judiciary, as such service could readily be perceived as improper involvement in the political process (see Opinions 07-156; 94-37; 22 NYCRR 100.5[A][1]). Similarly, a town justice may not assist the town board in filling a vacancy for the office of town justice, because such involvement “tends to blur the line separating the municipality’s executive and judicial branches, and it would involve the judge in prohibited political activity” (Opinion 08-14). The Committee has also advised that “sitting judges may not be involved in a bar association’s ranking or evaluating candidates for elective judicial office, [nor,] at the request of a judge seeking reappointment, submit a supporting letter to the appointing authority” (Opinion 16-47 [citations omitted]; see also Opinion 02-26 [a judge may not, at the request of the applicant, write a letter of recommendation encouraging a non-judicial appointing authority to appoint an attorney to an administrative law judge vacancy]).³

         Nonetheless, a judge may write a letter of reference on behalf of another judge who seeks to be designated by the Chief Administrative Judge to a higher judicial position (see Opinion 02-07). The Committee noted that the selection process “is confined entirely to the court system itself” and “carries with it none of the public aspects that might otherwise pertain to appointments to judicial office” (id.; cf. Opinion 15-173 [discussing prior opinions]).⁴ Similarly, a judge also may serve on a merit selection panel to identify qualified candidates to fill the position of magistrate judge for the US District Court, provided he/she does not participate in political activity or lend the prestige of judicial office to advance private interests (see Opinion 02-113). Here, too, the Committee noted federal magistrates are “appointed by United States District Court judges who have lifetime tenure, and not by elected executive or legislative officials” (id.; 28 USC § 631[a]).

         In the Committee’s view, membership on the housing part advisory council is roughly analogous to the circumstances described in Opinion 02-07 and Opinion 02-113. Critically, housing court judges are neither elected by the public nor appointed by the executive or legislative branch; they are, instead, appointed solely by the Chief Administrative Judge. Service on the advisory council involves recommending qualified applicants for purely internal appointments within the judiciary and thus does not implicate separation-of-powers concerns (cf. Opinion 08-14; 22 NYCRR 100.1) and cannot reasonably be perceived as lending the prestige of judicial office to advance private interests (see Opinion 02-26; 22 NYCRR 100.2[C]) or as impermissible involvement in the political process (see Opinions 08-14; 07-156; 94-37; 22 NYCRR 100.5[A][1]). Thus, the JHO’s participation is a permitted extra-judicial activity directly relating to improvement of the legal system and the administration of justice (see Opinions 02-113; 02-07; 22 NYCRR 100.4[C][2][a]).

         Accordingly, we conclude that a JHO may serve on the housing part advisory council.

_____________________

¹ The Chief Administrative Judge appoints ten members from specified groups, and two from “the public at large” (see Civil Court Act § 110[g]). The remaining two members are a mayoral appointee and the commissioner of housing and community renewal (see id.).

² Reappointment is “at the discretion” of the Chief Administrative Judge based on “the performance, competency and results achieved during the preceding term” (see Civil Court Act § 110[i]), but the advisory council also makes “recommendations as to reappointments” (Opinion 03-93/04-32).

³ A judge with relevant personal knowledge may, however, respond to a request from an appointing authority or screening committee for information about an applicant or candidate (see e.g. Opinions 07-130; 02-26).

⁴ Although Opinion 02-07 does not specify the position, the Committee notes the Chief Administrative Judge may “[d]esignate deputy chief administrators and administrative judges” for certain courts (Judiciary Law § 212[1][d]) and may designate certain judges to the appellate term (see NY Const art VI, § 8[a]). In either case, the required consultations or approvals are purely internal (i.e. a presiding justice or the chief judge) (see NY Const art VI § 8[a]; 22 NYCRR 1.1[e]-[f]).