Opinion 18-08

January 24, 2018

Digest:         A judge, who is working with prosecutors and defense lawyers to establish a local problem-solving court addressing mental health issues, may ask state legislators for financial support for this project.

Rules:          Judiciary Law § 212(1)(c), (n); 22 NYCRR 100.1; 100.2; 100.2(C); 100.4(C)(1); 100.4(C)(3)(b)(i), (iii); 100.5(A)(1)(iii); Opinions 17-123; 15-48; 14-139; 13-142; 13-63; 13-17; 08-73; 07-109; 99-158.

Opinion:

         A full-time judge, working with prosecutors and the defense bar to create a local mental health court, asks if he/she may ask local state legislators for financial support for the proposed court.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge may not personally solicit funds or do other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). But, a judge may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]); may appear at public hearings before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]); and may engage in limited political activity supporting measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]; Opinion 14-139).¹

         We have advised that a judge may contact legislators about matters concerning the law, the legal system, or the administration of justice. For example, a judge may meet privately with a state legislator to discuss legislation that proposes judicial upgrades (see Opinion 13-63); may support efforts to increase justice court funding via increased reimbursement of traffic tickets to towns and villages (see Opinion 15-48); write legislators about the impact of reduced mental health court staff (see Opinion 99-158); and write to legislators seeking names of people who might be suitable mentors for veterans in treatment courts (see Opinion 17-123). A judge also may advocate passage of a bond measure to fund a new courthouse by writing an op-ed piece, speak at public fora, vote and otherwise advocate publicly for a new court facility, as these acts concern the law, the legal system, and/or the administration of justice (see Opinion 07-109).

         Here, too, aiding and funding measures for a mental health court directly implicate the legal system and administration of justice. Thus, he/she may meet legislators to discuss the need and funding for the new court. We also suggest the judge consult his/her administrative judge “to determine what, if any, administrative procedures” should be followed (Opinion 13-142).²

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¹ It may be helpful to seek our guidance before undertaking partisan political activity in support of measures to improve the law, the legal system or the administration of justice (see e.g. Opinions 13-17 [judge may not sign petition framed as a partisan political initiative designed to garner statements of public support for a particular legislator]; 08-73 [judge may not establish a political action committee]).

² We note that certain aspects of the judge’s inquiry may overlap with the Chief Administrative Judge’s statutory functions, powers and duties (see e.g. Judiciary Law § 212[1][c], [n]).