Opinion 10-63

April 22, 2010

Digest:         A town judge whose judicial position has been eliminated by resolution of the town board may circulate a petition seeking a referendum on the resolution.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(i)-(iii); 100.5(A)(1)(c)-(e); Opinions 09-50; 07-109; 02-94; 90-16 (Vol. V); Town Law § 60-a.

Opinion:

         A part-time town justice advises that the town board of the town where the judge presides has passed a resolution pursuant to Town Law §60-a to eliminate the judge’s judicial position. This section of the Town Law provides that the town board’s resolution is “subject to permissive referendum.” The judge asks whether he/she may circulate a petition to hold a town referendum vote on the board’s resolution.

          A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge also must refrain from directly or indirectly engaging in political activity except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]). Judges are nonetheless permitted to vote, to identify themselves as a member of a political party, and to act on behalf of measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][i]-[iii]), as long as they do not violate other, more specific prohibitions, such as the ban on participating in other candidates’ political campaigns or publicly endorsing other candidates for public office (see 22 NYCRR 100.5[A][1][c]-[e]).

         The Committee has consistently advised that judges may publicly comment on legislative action to create or dissolve judgeships as such action concerns the law, the legal system and the administration of justice (see Opinions 09-50 [village justice may comment publicly on village board’s vote to dissolve village court, subject to permissive referendum pursuant to local law]; 02-94 [town justice may attend public meeting held by town council to speak about proposal to replace two part-time justices in town court with one full-time justice and one part-time justice]; 90-16 [Vol. V] [part-time judge may publicly oppose resolution by local municipal board that would create new judgeship, subject to public referendum]). In Opinion 90-16 (Vol. V), the Committee emphasized that a referendum on the creation of a new judgeship concerned “an issue relating to the legal system and the administration of justice,” rather than a political campaign for office (see also 22 NYCRR 100.5[A][1][iii]; cf. Opinion 07-109 [judge may advocate for passage of bond resolution to fund new court facility by writing op-ed article for publication in local press, by speaking at public informational forums before the vote, and by advocating publicly in favor of the need for new court facility, as those activities concern the law, the legal system and the administration of justice]).

         Accordingly, the Committee concludes that the judge may circulate a petition to challenge the town board’s resolution eliminating the judge’s judicial position.

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."