Opinion 24-46

March 14, 2024

Digest:  (1) Subject to generally applicable limitations, a judge may attend meetings of not-for-profit civic or charitable organizations to discuss the judge’s experience on the bench and may invite attendees to observe the court in session.  (2) A judge who is not a candidate for election or re-election to judicial office within the applicable window period may not purchase media advertisements for the judge’s upcoming speaking engagements.  (3) A judge may not record a public service announcement for a local radio station about a plea-by-mail program for parking tickets in the judge’s court.

Rules:   Judiciary Law § 4; 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i)-(ii), (iv); 100.5(A)(1)-(2); 100.5(A)(6); Opinions 23-129; 22-75; 20-136; 20-97; 20-89; 17-110; 17-12; 15-133; 15-61; 07-05; 98-150.

Opinion:

          The inquiring village justice would like to engage with his/her local community as a judge, and thus asks several questions about extra-judicial speaking engagements with community organizations and a possible public service announcement concerning a plea-by-mail program for village parking tickets.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 the private interests of the judge or others (see 22 NYCRR 100.2[C]).  Subject to these and other limitations, a judge may participate in extra-judicial activities, provided they are compatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially, do not detract from the dignity of judicial office, and do not interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). 

(1) Speaking to Community Groups

          The inquiring judge has been invited by several local not-for-profit civic or charitable organizations, such as a Rotary Club, garden club, and parent-teacher association, to discuss the judge’s experiences on the bench.  In each instance, the judge would address the group’s members at one of their periodic meetings.  The judge says the meetings are not fund-raisers and will not include any fund-raising components. 

          A judge generally may speak at an event sponsored by a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization, provided it is not a fund-raiser (see e.g. Opinion 22-75).  The judge may also permit the sponsoring organization to use the judge’s name, likeness, and title to promote such non-fund-raising event at which the judge will be speaking (id.). 

          We have also said that judges may publicly discuss their professional and personal background and experience (see Opinions 22-75; 17-12; 15-133).  This topic “is clearly compatible with judicial office, and unlikely to cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties” (Opinion 22-75 [quoting Opinion 15-133]).

          Such speaking engagements are, of course, still subject to generally applicable limitations on judicial speech and conduct.  For present purposes, we include a few basic reminders.

          First, the judge must not invite or engage in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and must not comment on pending or impending proceedings in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).  The prohibition “extends at least until the time for appeals has expired and often longer, such as when a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding is reasonably foreseeable” (Opinion 15-61 [citations and internal quotation marks omitted]). 

          Second, the judge’s remarks must not compromise public confidence in his/her impartiality.  For example, “a judge must not insert him/herself unnecessarily into the center of controversy, for example, by taking a position that is so controversial that it is incompatible with judicial office” (Opinion 20-136 [citations and internal quotation marks omitted]).  We have also said a judge must avoid statements that “could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment on an issue or to parties that may appear before him/her or otherwise undermine public confidence in his/her impartiality and independence” (id.). 

          Finally, we note a judge should always be mindful of numerous background rules such as the prohibitions on fund-raising, political activity, and lending judicial prestige to advance private interests (see 22 NYCRR 100.2[C]; 100.4[C][3][b][i]-[ii], [iv]; 100.5[A][1]). 

(2) Inviting Attendees to Observe Court

          The judge further asks if it is ethically permissible to invite attendees at such speaking engagements to come and observe the judge’s court sessions, as any member of the public may do. 

          Judiciary Law § 4 mandates that every court must sit in a location where the public may freely attend (see e.g. Opinion 98-150 [discussing laws and policies concerning open courtrooms]).  Given New York’s strong support for open proceedings in all its courts, a local judge may invite attendees from public speaking engagements to observe the village court and its proceedings.

(3) Purchasing Newspaper Advertising

          The judge asks if it is ethically permissible to purchase newspaper advertisements to promote the above-referenced speaking engagements.  The judge would use personal funds to pay for the advertisements, as he/she is not currently a candidate for election or re-election to judicial office and thus is not in his/her “window period” for permissible political activity. 

Under the rules, a judge “must act with considerable self-restraint” to maintain public confidence in the judiciary (Opinion 23-129).  In this regard, we have drawn a line between acts of self-promotion during an election campaign and similar acts outside the judge’s window period (see id. [where judge’s collection of social media videos “will readily be perceived as a campaign of self-promotion,” they must be removed at the end of the window period]).  For example, we have advised that a judge outside of his/her window period may not place “billboard messages extending greetings to the public” at local baseball diamonds, because they “effectively constitute media advertisements supporting the judge’s candidacy” (Opinion 07-05 [internal quotation marks omitted]).

In our view, this judge likewise should not pay for media advertisements promoting the judge’s upcoming speaking engagements.  Because these self-financed advertisements would easily be perceived as a form of self-promotion appropriate to a judicial campaign, a judge should not purchase these advertisements outside the applicable window period (see e.g. Opinions 23-129; 07-05). 

          We note that within the applicable window period, a candidate’s purchases of campaign-related goods or services are subject to the fair value rule and other requirements (see 22 NYCRR 100.0[Q] [defining “window period”]; 100.5[A][1]-[2]; 100.5[A][6]).  Judicial candidates may contact the Judicial Campaign Ethics Center (ww2.nycourts.gov/ip/jcec) for guidance.

(4) Plea-by-Mail Public Service Announcement

          Finally, the judge asks if it is ethically permissible to record a public service announcement (“PSA”) on a local radio station intended to inform the public about a plea-by-mail program for village parking tickets.  We assume for present purposes that the plea-by-mail program is intended to make it easier for defendant car owners to dispose of charged parking violations without going to the courthouse, by simply paying the fine listed on the ticket.

          We have advised that a judge must “proceed with caution” when discussing the possibility of resolving charges through a negotiated plea (Opinion 17-110).  For example, as we explained in Opinion 17-110 (citations omitted):

The judge must take care not to give the impression he/she “is predisposed towards the defendant’s guilt,” or is acting as an agent or intermediary for the prosecution.  The judge must avoid any appearance he/she is attempting to coerce a disposition or acting in furtherance of his/her own personal convenience or interests.  In general, to avoid any possible appearance of impropriety or coercion, the judge should satisfy him/herself that the defendant is aware of all his/her options, including the right to plead not guilty and go to trial before a fair and impartial arbiter. 

We expect that a plea-by-mail program for parking tickets is most properly seen as the prosecutor’s initiative, rather than the court’s (cf. Opinion 20-97 [court must not distribute the District Attorney’s informational document to defendant motorists to facilitate pleas to lesser charges, but “may include a link to the DA’s website as a convenience to defendant motorists” on a court-approved form listing all options]).  Thus, a PSA from a village justice promoting a plea-by-mail program for village parking tickets could readily create an appearance of impropriety, such as an appearance that the judge is predisposed toward a defendant’s guilt or is acting as an agent or intermediary for the prosecution.  Accordingly, we conclude it is not permissible for a judge to record such a PSA.

We note an additional risk on the facts presented, that the public could perceive the PSA as designed to promote the judge as much as the plea-by-mail program.  In Opinion 20-89, for example, we advised that a judge who lacks a “pre-existing special connection or personal relationship” with the students may not mail congratulatory letters to a graduating high school class.  We noted that such “constituent-oriented” functions were akin to those of a legislator and “not a traditional part of a judge’s regular interactions with the public” (id.).  Here, too, the promotion of a plea-by-mail program is not a traditional judicial function and could be perceived as political and self-promotional in nature.  At the very least it promotes the inquiring judge as an advocate of on-line resolution of parking tickets.  There is too much potential for the appearance of impropriety in a PSA that would be “cloaked in the trappings of judicial office and will readily be perceived as a campaign of self-promotion” (Opinion 23-129).  We therefore conclude the PSA is also impermissible for this reason as well.