Opinion 24-63
March 14, 2024
Digest: A judge may not participate in efforts to honor a trailblazing physician with a postage stamp, where such efforts include petitioning the U.S. Postal Service and/or elected officials, and have no connection to the law, the legal system, or the administration of justice.
Rules: 22 NYCRR 100.2; 22 NYCRR 100.2(A), (C); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1); Opinions 23-83; 23-61; 17-38; 16-89.
Opinion:
The inquiring full-time judge has been involved with a community-based committee which seeks to raise awareness of a trailblazing physician of a particular minority background. The committee is now organizing an effort to encourage the U.S. Postal Service to issue a commemorative postage stamp in the physician’s honor. These efforts include signing and submitting a petition addressed to the U.S. Postal Service and sending letters to elected officials asking them to support issuance of the stamp. The judge asks if it is ethically permissible to be listed on the petition and letters, without any reference to the judge’s judicial title.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge’s extra-judicial activities must not be incompatible with judicial office and must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge must not appear at a public hearing before an executive or legislative body or official except on matters relating to the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]). As for political activities, Section 100.5(A)(1) provides:
Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice.
Accordingly, we have observed that “Section 100.5 starts with an across-the-board prohibition of any direct or indirect political activity by judges before delineating three discrete exceptions to the blanket prohibition” (Opinion 17-38). In that opinion, we advised that judges may not publicly express an opinion on a proposed federal executive branch appointment, either by calling a U.S. Senate committee or by signing a MoveOn.org petition. We nonetheless recognized that “[t]here may potentially be instances where a judge would be permitted to sign a petition either electronically or in person,” especially “in circumstances where a judge would be permitted to appear before a governmental body or write a letter to the editor or otherwise publicly express his/her views” (id.). In other words, these would typically be petitions “relating to [the judge’s] personal interests or relating to improvement of the law, the legal system or the administration of justice” (id.).
The inquiry here sets forth no “clear and direct personal interest at stake” that would warrant public advocacy by the judge (cf. Opinion 23-61). Nor does the proposed commemorative stamp relate to the law, the legal system, or the administration of justice. While a judge may publicly urge a municipality to “add court officers’ names to a memorial honoring first responders who died during rescue efforts following a terrorist attack” (Opinion 16-89), the prospective honoree here was a member of the medical profession rather than a judge or court employee.
In this regard, we expressly distinguish Opinion 23-83. There, the inquiring judge was serving on a “court-sponsored committee on racial equality in the courts” which had been “expressly directed” by a high-level administrative judge to “interact with the local community” and “highlight local history” (id.). Given that express directive, we “conclude[d] that a judge’s participation in the effort to remove a racially offensive name from a local geographical feature, as a member of this committee, serves the objectives of the Unified Court System and is essentially an extension of their judicial role” (id.). In other words, the distinctive facts in Opinion 23-83 provided a clear connection between the removal of an offensive place name and the judiciary, allowing us to conclude that judges on the Equal Justice in the Courts Committee could publicly support the renaming effort to a limited extent.
Here, by contrast, the committee seeking to honor the physician with a commemorative stamp is a community group, rather than a court-sponsored committee acting in furtherance of a high-level administrative judge’s directives. The committee’s efforts are not to remove a racially offensive name from the community, but to promote a specific individual. Under the circumstances, there is insufficient nexus with the law, the legal system, or the administration of justice to warrant public advocacy by the judge, whether directed to the U.S. Postal Service or to government officials.