Opinion 18-185

December 11, 2018

Digest:         A judicial association and its members may express views supporting or opposing a funding increase for the Commission on Judicial Conduct in next year’s budget both (1) in writing to the Governor and members of the legislature; and (2) in meetings with members of the Executive Chamber or members of the legislature.

Rules:          22 NYCRR 100.2; 100.2[A]; 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3)(b)(iii); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 18-08; 16-95/16-107; 16-55; 15-100; 13-17; 08-73.

Opinion:

         A full-time judge who is an officer of a judicial association asks if the association and its member judges may take a position on increased budget support for the Commission on Judicial Conduct in the next year’s state budget. If permitted, the judicial association would like to make its position known (1) in writing to the Governor and members of the legislature; and (2) in meetings with members of the Executive Chamber or members of the legislature.

         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]). Thus, for example, a judge’s extra-judicial activities must be compatible with judicial office, and must not (1) cast doubt on his/her capacity to act impartiality as a judge, (2) detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         We have generally advised that “a judges’ association ‘is held to the same standards as an individual judge’” (Opinion 15-100 [discussing prior opinions; citations omitted]). The Rules Governing Judicial Conduct expressly permit a judge to “make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3][b][iii]). Moreover, although a full-time judge ordinarily must not “appear at a public hearing before an executive or legislative body or official,” the Rules expressly permit full-time judges to do so “on matters concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][1]). Likewise, the broad prohibition on any judge “directly or indirectly engag[ing] in any political activity” (22 NYCRR 100.5[A][1]) nonetheless permits judges to 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

         Applying these principles, we have said a judge may “ask state legislators for financial support” for a proposed local problem-solving court addressing mental health issues (Opinion 18-08) or “write a letter on behalf of a not-for-profit organization’s grant application to assist crime victims,” subject to certain limitations (Opinion 16-95/16-107).

         As we observed in Opinion 16-55 (citations omitted), “[t]he state constitution establishes the state’s three branches of government and vests specific bodies with authority to discipline, remove, or impeach judges.” The Commission on Judicial Conduct is a body constitutionally vested with authority to discipline judges, and thus has a role in maintaining public confidence in the judiciary. We therefore conclude that the appropriate level of funding for the Commission is a matter concerning “the law, the legal system or the administration of justice,” so that both full-time and part-time judges, and their respective judicial associations, may publicly express their views on this subject (see 22 NYCRR 100.4[C][1]; 100.4[C][3][b][iii]; 100.5[A][1][iii]).

         In sum, we see no impropriety in an association of full-time judges expressing its views supporting or opposing a funding increase for the Commission on Judicial Conduct in next year’s budget, both (1) in writing to the Governor and members of the legislature; and (2) in meetings with members of the Executive Chamber or members of the legislature.

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¹ As we noted in Opinion 18-08 n1: “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]).”