Opinion 22-44

March 10, 2022

Digest:         A part-time town justice also employed full-time by a private employer may respond to another town’s request for public input on its zoning laws which prohibit that employer’s operations. In so doing, the judge must not reference the judge’s judicial title or status.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(C)(1); 100.4(C)(2)(a); 100.6(B)(1); Opinions 20-193; 13-189/14-02; 08-33; 06-32. 

Opinion:

         The inquiring town justice is also employed in a managerial capacity with a forest products equipment manufacturer. Another town in the same county currently prohibits commercial sawmill operations, and is now soliciting public comment on its zoning laws. The judge asks if they may personally participate in the public input on possible zoning law changes.

         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 must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) but may appear at a public hearing before an executive or legislative body when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]). We note that the rules also give part-time judges greater latitude than full-time judges in appearing at a public hearing before an executive or legislative body or official, or in accepting appointment to governmental committees and commissions, on matters unrelated to the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]; 100.4[C][2][a]; 100.6[B][1]; cf. Opinion 06-32 [discussing the greater latitude allowed a part-time judge]). Of course, a judge may not make any public comment on a pending or impending court proceeding in the United States or its territories unless an exception applies (see 22 NYCRR 100.3[B][8]).

         Previously, we advised that a town justice may not speak at a town board meeting considering a resolution opposing a state regulation extending big game hunting season (see Opinion 20-193). The judge wished to publicly oppose this regulation, based on a possible negative impact on small businesses in the town. The matter was very controversial, as there were sharply divergent views of the economic impact of the regulations on the town’s businesses, and the inquiry revealed no direct personal interest of the judge in the matter. On those facts, we said the judge’s participation was impermissible.

         Two factors distinguish the present inquiry from Opinion 20-193. First, the inquiring town justice presided in the very same town where the controversial resolution was proposed. Thus, the controversy was extremely local. Here, the town justice does not preside in the same town considering a change in its zoning laws.

         Second, and perhaps more salient is the fact that in the hunting season regulation matter, the town justice did not identify, and we did not perceive, any cognizable personal or property interest that would be directly affected by the resolution at issue (see Opinion 20-193). In essence, the justice’s disagreement with the resolution was a matter of personal opinion or policy preference, rather than affecting any cognizable interest.

         By contrast, the inquiring judge here is a full-time employee of a private entity, a forest products equipment manufacturer. If commercial sawmill operations are barred by zoning regulations, the judge’s outside employer might be compelled to close operations, curtail business, and/or commence layoffs, all of which may negatively affect the judge’s livelihood. As such, the judge has a clear personal interest in this zoning dispute.

         We have said a part-time judge may write a letter to the editor concerning a school construction project that would affect the judge as “a taxpayer, homeowner, and perhaps even as a parent or family member of a student” (Opinion 08-33). Likewise, we said part-time judges may express their views on the repeal of specific provisions of a state statute “solely as a private citizen whose personal interests (i.e., their personal safety) will be affected” (Opinion 13-189/14-02).

         Here, too, we conclude that a part-time judge may respond to another town’s request for public input on their zoning laws, when a proposed change would have an impact on the judge’s outside employment. In so doing, the judge must not use judicial stationery nor otherwise reference the judge’s judicial title or status. The judge’s contributions to the discussion, whether oral or in writing, should be civil and dignified.