Opinion 23-223
February 1, 2024
Digest: (1)
A town justice may advocate for the judge’s preferred schedule and scheduling
policies for use of the town’s multi-purpose room as a courtroom, subject to
generally applicable limitations on judicial speech and conduct.
(2) On these facts, while the judge may pursue lawful avenues to challenge the
resolution, the judge may not simply disregard the resolution and schedule
court sessions as if it had not been issued.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(C)(1); 100.4(A)(1)-(3); 22 NYCRR 101.1; Opinions 23-21; 23-19; 21-168; 20-42; 19-120; 16-12; 14-49.
Opinion:
The inquiring town justice holds court sessions in the town’s multi-purpose room, which is shared by all branches of town government. The town board recently passed a resolution setting a baseline schedule and new scheduling policies for the multi-purpose room, and in doing so, modified the judge’s previously observed or established schedule. The judge questions the legality of the resolution and now asks, in effect, if it is permissible to advocate for the judge’s preferred schedule and scheduling policies and against the town board’s versions by publishing and circulating a letter on this subject.[1] The judge further asks if it is permissible to “disregard[] the faulty Town Board resolution and continu[e] to schedule Court sessions as deemed necessary by my court.”
Judges must 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 also must “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). Moreover, a judge “should cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]). A judge’s extra-judicial activities must not be incompatible with judicial office nor (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (22 NYCRR 100.4[A][1]-[3]).
Preliminarily, we must decline to comment on the specific wording of this judge’s proposed letter, as we are “not in a position to review, edit or otherwise approve/disapprove” judges’ proposed writings (Opinion 16-12).
Where a single multi-purpose room is shared by the judicial, legislative, and executive branches of the town’s government, a formally or informally agreed-upon schedule is surely a practical necessity. The nature of the agreement process and the level of authority held by each branch to control use of the shared room raises legal and administrative questions on which we cannot comment (see generally Opinions 23-21; 23-19; 21-168; 22 NYCRR 101.1; Judiciary Law § 212[2][l]). Likewise, we cannot comment on the validity of this town board’s resolution or its proposed scheduling process (see id.).
Nonetheless, the topic of scheduling court sessions in a shared multi-purpose room clearly implicates court operations and the administration of justice. It is thus a suitable subject for public advocacy (see e.g. Opinion 19-120). Accordingly, we conclude that this judge may advocate for the judge’s preferred schedule and scheduling policies and against the town board’s versions, subject to generally applicable limitations on judicial speech and conduct. For example, the judge’s comments “must comport with the dignity of judicial office and eschew personal attacks on government officials” (Opinion 20-42) and must not compromise public confidence in the judge’s impartiality (id.).
The judge’s proposal to disregard the town resolution entirely in scheduling court sessions is a matter of first impression for us. However, in connection with a question about attending an event whose theme was “repealing or disregarding” a particular statute, we previously advised in Opinion 14-49 (citation omitted):
Although judges may seek repeal or amendment of a law, … they may not simply disregard the law. In the Committee’s view, the theme of simply “repealing or disregarding” a particular law is profoundly disrespectful of the rule of law, and reflects an attitude which is wholly incompatible with the judicial function.
On the specific facts presented here, while the judge may pursue lawful avenues to challenge the resolution, we conclude the judge may not simply “disregard[]” the resolution and schedule court sessions as if it had never been issued.
[1] The judge’s intended recipients would include the town board, other judges, certain county agencies, and the media.