June 18, 2020
Digest: A judge may not mail congratulatory letters to a graduating high school class.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); Opinions 20-55; 17-15; 07-05; 04-143/05-05; 02-34; 02-04; 99-155.
A town justice asks if he/she may send a letter on court stationery to the town’s graduating high school seniors who have not been able to enjoy traditional in-person celebrations and activities in their final semester due to public health restrictions. The judge would like to strike a positive note by “recogniz[ing] those seniors who have graduated during this very conflicting time.” The inquiry reveals no pre-existing relationship between the judge and this graduating class.
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 also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]).
A judge may mentor a high school student through a not-for-profit program (see Opinion 20-55) or deliver a commencement speech to graduating students (see Opinion 02-04). Sending letters to an entire class of high school graduates not personally known to the judge, however, raises different concerns.
Our core concern is the likely public perception of such activity as political in nature, and a possible appearance that the prestige of judicial office is being used to advance the judge’s purely private interests. In this regard, we note that while judges may extend greetings to the public for national holidays and other special occasions by purchasing newspaper advertisements, they may not do so by purchasing billboard advertisements (see Opinion 07-05). We explained that, due to their “highly visible and semi-permanent location, the billboards effectively constitute ‘media advertisements supporting (the judge’s) candidacy’ under the Rules and are thus impermissible outside the judge’s Window Period” (id.).
Here, too, in distinguishing between the permissible activity of delivering a commencement address and the impermissible activity of mailing congratulatory letters to a graduating high school class, context is key. Because the inquiry reveals no pre-existing special connection or personal relationship between the judge and the students involved, this would be, in effect, a mass mailing to a particular class of people in the judge’s community. When legislators send out such mailings to their constituents on special occasions such as high school graduations, we believe this is properly seen as campaign activity. Such “constituent-oriented” functions are not a traditional part of a judge’s regular interactions with the public. Thus, the mailing would readily be seen as impermissible political activity by the judge and/or an outreach to voters outside the window period (see 22 NYCRR 100.5[A]; cf. Opinions 07-05 [judge outside his/her window period may not place a billboard advertisement extending greetings to the public]; 02-34 [judge may not contact community residents outside the window period to learn if they would support the judge as a candidate for judicial office]).
Moreover, we are also troubled by questions of how the judge would obtain the students’ home addresses. If a high school would not disclose this information to an ordinary member of the public, then the judge would presumably need to identify him/herself as a judge to obtain it (see 22 NYCRR 100.2[C]).
Accordingly, on these facts, we conclude a judge may not mail congratulatory letters to a graduating high school class (see 22 NYCRR 100.2[C]; 100.5[A]).1
There is, of course, no ethical bar to exchanging a polite in-person greeting and congratulating an individual high school student the judge may meet in the community, whether or not previously known to the judge. Nor do the Rules Governing Judicial Conduct preclude a judge from sending a card or letter in appropriate circumstances to a graduating high school student personally known to the judge, perhaps as a mentor or family friend (cf. Opinion 17-15 [Family Court judge may send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge]).
1 While we need not now address whether a judge may send congratulatory letters to a graduating high school class during his/her window period, we note that a judge must not use judicial stationery in his/her election or re-election campaign, even if the stationery is marked “personal and unofficial” (Opinions 04-143/05-05; 99-155).