Opinion 20-60

March 19, 2020

Digest:         A judge may ask the Commission on Judicial Conduct if they received any complaints against the judge’s deceased spouse, but must not use or invoke his/her own judicial title or status in making this request.

Rules:          Judiciary Law § 45; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 101.1; Opinions 19-34; 17-77; 13-38; 12-96.

Opinion:

         The inquiring judge wonders if a politically motivated disciplinary complaint against his/her now deceased spouse may have undermined the spouse’s “reputation, career and health.” Accordingly, the judge asks if he/she may contact the Commission on Judicial Conduct to ask if they received any complaints concerning the spouse’s judicial service.¹

         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]). Among other restrictions, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).

         The Rules Governing Judicial Conduct do not preclude a judge from exercising the same rights to protect or advance his/her direct, personal interests as other similarly situated individuals who are not judges (see e.g. Opinions 17-77; 13-38; 12-96). A judge should, however, exercise care not to use or invoke his/her judicial title or status in doing so (see e.g. Opinion 19-34; 22 NYCRR 100.2[C]).

         Here, too, this judge may take the same steps “to protect or assert” his/her personal rights, if any, with respect to the deceased spouse as may other similarly situated widows and widowers (see Opinion 19-34). Thus, the judge may ask the Commission if they received any complaints arising from his/her deceased spouse’s judicial service. However, the judge must not use or invoke his/her own judicial title or status in doing so.

         Finally, we remind the judge he/she must not “directly or indirectly engage in any political activity” except as expressly authorized (22 NYCRR 100.5[A][1]). Thus, while we take no position on whether the Commission can or will provide the requested information (cf. Judiciary Law § 45), we note the judge must not use any information he/she may receive in a partisan political manner, even as part of an effort to rehabilitate his/her spouse’s memory.

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¹ We cannot comment on legal questions, such as whether the Commission may divulge the requested information (see 22 NYCRR 101.1; Judiciary Law § 45 [confidentiality of records]).