Opinion 19-137

December 12, 2019

Please Note: In Opinion 20-198, we said: “On further consideration, we note that Opinion 19-137 involved a perhaps unusual set of facts, and we draw attention to the concluding paragraph,” which reaffirms “the general principle that the ethics rules ‘broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice, and … participation in such activities is to be encouraged.’”

Digest:         A town justice may not write the town board expressing his/her personal view that a newly enacted local law was poorly drafted and offering proposed amendments to solve the problem.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1); 100.4(A)(3); 100.3(B)(8); Opinions 19-120; 18-183; 16-78; 14-34; 10-147; 90-167; Marbury v Madison, 5 US 137 (1803).

Opinion:

         The inquiring town justice believes a recently enacted local law “was poorly written” and asks if he/she may write the town board expressing this view “as a private citizen” and offer “possible solutions to the problem.” If permitted, the judge would assure the town board that its decision would not influence his/her judicial conduct and judgment.

         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’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and thus a judge’s extra-judicial activities must not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][3]). In addition, a judge must not publicly comment on pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B][8]).

         From the outset, we note that this judge, as part of his/her judicial duties, will preside over matters involving violations of this recently enacted local law. Indeed, unlike laws enacted by state or county legislatures, matters involving local laws are ordinarily heard only in the local justice court.

         We have said a village justice may act as an informal legal advisor to the mayor and village board of trustees to comment on and review the village’s code of ordinances concerning clarification and improvements (see Opinion 90-167). Likewise, a town justice may, at the town supervisor’s request, serve on a committee to examine and review local laws in relation to the merger of two municipalities (see Opinion 18-183). In both instances, however, municipal leaders asked the judge to serve in an advisory capacity as the municipality was beginning to undertake a review of its local laws. Here, the judge sua sponte objects to one specific local law that the municipality has recently passed. On these facts, this judge’s proposed role - intervening to re-write a law he/she finds problematic - would blur the line between judicial and legislative functions and could raise questions about the judge’s ability to be fair and impartial.

         The judge’s proposal to speak on this topic purely as a “private citizen” does not change the result, since the judge does not identify any cognizable personal interest which will be directly affected by the local law. Indeed, it is impossible in this instance to separate the judge’s ostensibly “private” opinion about the law’s merits from that of his/her “judicial” opinion as the judge tasked with presiding in matters alleging violations of the local law.

         In sum, we believe this judge’s proposed extra-judicial airing of concerns over this local law should not be permitted, as it would in these circumstances cast doubt on his/her capacity to act impartially as a judge.

         Of course, when this local law comes before the judge in the course of his/her judicial duties, he/she may interpret it in his/her official capacity. Indeed, even if the judge were to find it void for vagueness or unenforceable as written, a judge has “the inherent power to interpret the appropriate provisions of governing law” (Opinion 14-34, citing Marbury v Madison, 5 US 137, 177 [1803] [“lt is emphatically the province and duty of the judicial department to say what the law is”]).

         Finally, we note that our present opinion leaves unchanged the general principle that the ethics rules “broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice, and … participation in such activities is to be encouraged” (Opinion 19-120 [citation omitted]). For example, judges may comment publicly on “proposed legislative or constitutional changes that would impact court structure, court operations and/or the terms or conditions of judicial service [as] [t]hese are clearly core matters concerning the law, the legal system, and the administration of justice in New York” (id.). We have also said judges may express their views concerning “a pending bill which, if passed, would extend the rights of defendants before the Justice Courts” (Opinion 10-147) and a judge may raise concerns about “a proposed change to a local speed limit” by advising the town board “that defendants already perceive the local limit as a ‘speed-trap’ and … that the proposed change may undermine public confidence in the courts” (Opinion 16-78). As explained herein, these circumstances warrant a different result.