Opinion 23-200
February 1, 2024
Digest: The Chief Judge may, as the chief judicial officer of the Unified Court System, represent the judiciary’s interests by accepting an invitation to speak at a legislative conference sponsored by a 501(c)(3) not-for-profit entity, at a specific session focused on the judiciary’s operational needs and/or experience with respect to developing technologies. The judge may not otherwise attend or participate in the legislative conference.
Rules: NY Const art VI § 28(a)-(b); art VII § 1; Judiciary Law §§ 212(1); 212(1)(f), (j), (y); 212(2)(l)(iii); 22 NYCRR part 100, Preamble; 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.3(C)(1); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(g); Opinions 21-142; 20-162; 20-41; 19-129; 19-120; 06-115; 04-27; 97-152; 88-136.
Opinion:
Under the Judiciary Law, we are required to “publish [our] advisory opinion and the facts and circumstances upon which it is based with appropriate deletions of names of persons, places and things which might tend to identify either the judge or justice making the request or any other judge or justice of the unified court system” (Judiciary Law § 212[2][l][iii]). On the unusual facts presented, we advised the Chief Judge that it would be difficult, if not impossible, for us to address the present inquiry without revealing the Chief Judge’s identity. The Chief Judge waived confidentiality to the extent necessary for us to publish an opinion.
The question presented is whether the Chief Judge may speak at the annual legislative conference of the New York State Association of Black, Puerto Rican, Hispanic & Asian Legislators, Inc. in Albany. This appears to be the same annual conference discussed in Opinion 20-41, and the sponsor remains organized as a 501(c)(3) not-for-profit entity. The new factor here is that the Chief Judge has been invited to speak to legislators at one specific judiciary-oriented session about the Unified Court System’s operational needs and/or experience with respect to developing technologies.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “include all the duties of the judge’s office prescribed by law” (22 NYCRR 100.3[A]), and such duties “take precedence over all the judge’s other activities” (id.). A judge must also “diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration” (22 NYCRR 100.3[C][1]). However, a judge may not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). For example, outside the applicable window period, a judge must not attend political gatherings (22 NYCRR 100.5[A][1][g]).
In general, a judge who is not in their window period for election or re-election “may not attend or participate in an event sponsored by a political organization, even for an otherwise permissible non-political purpose” (Opinion 19-129 [discussing prior opinions]). For example, we advised that a Family Court judge may not speak at a political club about the function of the Family Court (see Opinion 88-136).
Moreover, we have advised that a full-time judge may not attend the specific annual conference at issue here, even if the nature and identity of the sponsor has evolved over time (see Opinions 20-41; 04-27; 97-152).[1] As we explained in Opinion 20-41 (footnote omitted):
Despite NYSABPRL’s stated non-political and non-partisan purposes, we believe its annual conference is undoubtedly a legislative gathering. The event is hosted exclusively by the NYSABPRL, whose members and leadership are all elected state legislators. The conference is dedicated to discussions and information on legislative budget access and the process. Indeed, it includes at least one political caucus-hosted meeting and multiple legislator-hosted networking events and issues workshops. Several conference sessions are designed to spark debate about issues that may be before the state legislature for review. Participation by a judge would give the impression that the judge is directly or indirectly engaging in a political process, advocacy and/or providing opinions on legislative topics.
Again, we have emphasized that “there is no distinction between participating actively or attending as a spectator” (Opinion 97-152; see also Opinion 20-41 [“judge may not attend or participate”]).
The Chief Judge of the Court of Appeals is, under our constitution, “the chief judicial officer of the unified court system” (NY Const art VI § 28[a]). The Chief Judge is specially singled out to make reports to the legislature on behalf of the judiciary and otherwise represent the Unified Court System’s interests (see e.g. NY Const art VII § 1 [financial needs of the legislature to be certified by the Chief Judge]; Judiciary Law § 212[1][f], [j], [y]).[2]
The Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR part 100, Preamble). It appears that the Chief Judge, as the chief judicial officer of the Unified Court System, bears the ultimate responsibility of representing the judiciary to and among the other branches of government. In our view, the Chief Judge should have the discretion to represent the Unified Court System’s interests by accepting this particular invitation to speak to legislators at a single judiciary-focused program about the judiciary’s operational needs and/or experience with respect to developing technologies, notwithstanding that the program is taking place during a legislative conference that judges may not otherwise attend (cf. Opinions 20-162 [permitting a part-time judge to serve on “a subcommittee concerning the establishment of a county-wide centralized arraignment part,” even though the subcommittee was created by “a task force on which the judge cannot serve due to its apparent immersion in probation department programs or internal policies”]; 19-120 [supporting measures to improve the law, the legal system or the administration of justice]; 22 NYCRR 100.5[A][1][iii] [same]).
In reaching this conclusion, we note that other judges still may not “attend or participate” in this conference (Opinion 20-41). Nor may the Chief Judge attend or participate in any other portions of the conference; this opinion addresses only a speaking engagement intended to educate the legislators in attendance, which is consistent with the “duties of the [Chief Judge’s] office prescribed by law” (22 NYCRR 100.3[A]). We emphasize that the program in question is not sponsored or co-sponsored by any political club, political party, or political action committee (see Opinions 19-129; 88-136; 22 NYCRR 100.5[A][1][g]).
Should the Chief Judge choose to accept this speaking engagement, ordinary limitations on judicial speech and conduct apply, including the public comment rule (22 NYCRR 100.3[B][8]).
[1] This annual conference differs from a similar conference in Puerto Rico, which is co-sponsored by Somos, a not-for-profit charitable and educational organization (see Opinions 21-142; 06-115).
[2] We note that the chief administrator of the courts serves “at the pleasure of the chief judge” (NY Const art VI § 28[a]) and acts “on behalf of the chief judge” (id. at § 28[b]; Judiciary Law § 212[1] [“the following functions, powers and duties which shall be exercised as the chief judge may provide”]).