Opinion 23-26
March 23, 2023
Digest: (1) A judge who is concerned about violations of property maintenance regulations in the judge’s neighborhood may publicly express the judge’s personal views as a private citizen whose personal interests are affected by the lack of zoning enforcement, including at a public meeting of the city council or in a letter to the editor. (2) On these facts, the judge may also draw on the judge’s prior experiences as a city prosecutor and a city court judge to propound suggestions to the mayor and city council about how the local court could address these quality-of-life issues, but should not refer to the judge’s present judicial status in doing so.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(1); Opinions 15-131; 13-178; 10-197; 10-156; 06-93; 04-24; 02-116; 97-36; 92-21.
Opinion:
A full-time judge has observed abandoned vehicles, debris, fire hazards, and exterior deterioration of homes in the judge’s neighborhood, in violation of local property maintenance regulations. Such matters were once resolved in the city court as part of a collaborative “housing” or “codes” court, which focused on seeking compliance, but this practice was discontinued and no property maintenance cases have been heard recently in city court. The judge wishes to address these issues in a variety of contexts. For example, the judge asks if it is permissible to appear at a city council meeting and write a letter to the editor on personal stationery to express the judge’s personal views as a citizen whose private interests are affected by the lack of zoning enforcement in the judge’s neighborhood. The judge also asks if it is permissible to discuss with city officials how a specialized codes court may effectively resolve these quality-of-life issues in the community. In doing so, the judge would draw on the judge’s prior experience with how code violations were addressed during the judge’s former service as a city court judge and as a prosecutor, without using specific cases or controversies.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Nevertheless, a judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). While a full-time judge is generally prohibited from appearing at a public hearing before an executive or legislative body or official, such conduct is permitted if the matter concerns the law, the legal system or the administration of justice or if the judge is acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]).
Commenting as a Private Citizen Whose Personal Interests are Directly Affected
We have advised that “a judge may publicly express his/her views on a variety of issues that affect him/her personally and directly, in his/her capacity ‘as a private citizen whose personal interests will be affected’ but must avoid public comment on controversial subjects that ‘do not directly affect the judge’s interests’” (Opinion 13-178 [citations omitted]). In doing so, a judge must “not use judicial stationery or otherwise refer to [their] judicial office” (id.).
Permitted activity has included speaking or writing about natural gas drilling to the extent that it personally affects the judge’s property (see Opinions 10-197; 10-156), speaking at public hearings and writing to elected officials about a proposed power line that will be located close to the judge’s home (see Opinion 06-93), and speaking at a planning board meeting concerning re-zoning near property owned by the judge (see Opinions 92-21; 02-116).
Here, the judge would like to publicly express personal concerns about the lack of property code enforcement in the judge’s own neighborhood, either by writing letters to the editor or by speaking at public meetings. The judge would be speaking as a private citizen, without reference to judicial status, about quality-of-life issues that directly affect the judge and their family.
We conclude this is permissible, again provided the judge does not use judicial stationery or reveal their judicial status (see e.g. Opinions 97-36; 04-24; 06-93; 13-178).
Making Suggestions About Court Operations Based on Prior Experience As City Prosecutor and City Court Judge
The judge also asks whether they may discuss with the mayor and city council, in either public or private meetings, how a specialized codes court could help resolve these quality-of-life issues in the judge’s community. In these meetings, the judge would draw upon the judge’s prior experiences in handling code violations as a prosecutor and city court judge.
We note that this aspect of the judge’s proposed comments appears to intertwine the judge’s own personal concerns with a proposal for improvement of the law, the legal system or the administration of justice. On the facts presented, disclosure of the judge’s former status as a city prosecutor and former judicial experience as a city court judge is clearly relevant and related to the judge’s proposal for a specialized codes court, and is not likely to be misperceived as an attempt to lend the prestige of judicial office to advance the judge’s private interests (see 22 NYCRR 100.2[C]; Opinion 15-131). We emphasize that the judge need not disclose their present judicial status to express these personal concerns and propose solutions, and should not do so (see 22 NYCRR 100.2[C]).
Accordingly, we conclude the judge may also draw on the judge’s prior experiences as a city prosecutor and a city court judge to propound suggestions to city officials about how the local court could address these quality-of-life issues, but should not refer to the judge’s present judicial status in doing so.