Opinion 24-68
May 9, 2024
Digest: Although a magistrates association, as well as individual judges, may publicly oppose a court reorganization that would replace local town and village courts with a district court, they may not do so by undertaking traditional “campaign activity” such as campaign advertisements, lawn signs, palm cards, or raising funds from the public.
Rules: 9 NYCRR 6200.10; 22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A), (C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(h); 100.5(A)(5); Opinions 21-158; 19-120; 18-185; 17-38; 15-171; 08-73; 06-67; 97-45.
Opinion:
The inquiring town justice is an officer of a magistrates association that opposes the establishment of district courts in its county. The association’s town and village justices believe they will lose their jobs if the plan is implemented and thus they wish to pursue a campaign against the concept as if the judges were running for election. The inquirer first asks if the association may purchase lawn signs, palm cards, and newspaper advertisements opposing the district court proposal, using association funds (presumably dues or personal contributions from member judges) for this purpose. The judge then asks if the association may hold a fund-raiser to pay any remaining expenses. In the alternative, the judge asks if the association may permit a “separate individual” who is not a judge to hold a fund-raiser on behalf of the association for this purpose, and thereafter accept the proceeds.
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 take precedence over all his/her other activities (see 22 NYCRR 100.3[A]). Thus, all extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge “shall not personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]), nor “use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR 100.4[C][3][b][iv]). A judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Further, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).
In Opinion 17-38, we advised that “the starting point for an inquiry about political activity is one of prohibition, with discrete and narrow exceptions drawn only after a careful analysis of all of the factors informing the decision.” We here consider the exception that permits judges to engage in certain political activities on behalf of “measures to improve the law or the legal system” (22 NYCRR 100.5[A][1][iii]). As we advised in Opinion 19-120:
A full-time judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial service, and may do so by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.
Similarly, we have advised that a magistrates association may publicly oppose a proposal to abolish local courts in favor of a district court system (see e.g. Opinion 21-158). On such a topic, judges may, either individually or as an association, write letters, publish opinion pieces, advocate publicly to public officials or governmental bodies, testify at public hearings, and speak at public forums (see id.). However, we said the judges could not speak at “partisan political gatherings or meetings of a political party or committee” (id.). We have also advised that a judge may not form a political action committee, even to “advance and influence legislative initiatives that affect the courts and the judiciary” (Opinion 08-73).
Clearly, judges and judicial associations may write and speak at various public and private forums (other than political gatherings) and write letters or editorials concerning the merits of a proposal to replace the town and village justice courts with a district court system, subject to generally applicable limitations (see e.g. Opinions 21-158; 19-120).
In contrast, the activities which are the subject of this inquiry are a very specific form of political activity readily recognizable as “campaign activity.” Purchasing and deploying lawn signs, palm cards, and advertisements are the hallmarks of a “political campaign.” The public, viewing these signs, palm cards, and advertisements, would conclude that these activities are an attempt to sway the voting public in an election or referendum. As the Board of Elections’ website explains:
A political committee is any corporation aiding or promoting, and any committee, political club or combination of one or more persons operating or cooperating to:
· Aid or promote the success or defeat of a political party or principle or of any ballot proposal;
Accordingly, the specific proposed “campaign activity” here would, at the very least, create an appearance that the judicial association had either formed a political committee or was acting as one (see e.g. 9 NYCRR 6200.10 [disclosure of independent expenditures]). Both are impermissible. Judges may not form a campaign committee except to further their own campaign for public election to judicial office, and then only during their own applicable window period (see 22 NYCRR 100.5[A][5]; Opinion 08-73). Moreover, the prospect that the town and village justice courts might be replaced with a district court system does not create a known judicial vacancy to be filled by public election, and therefore does not create a “window period” for permissible campaign activity (see generally 22 NYCRR 100.0[A]; 100.0[Q]; Opinion 97-45).
In our view, the prohibition is even more clear with respect to raising funds from the public for the proposed “campaign activity.” This is simply not permitted by the rules (see 22 NYCRR 100.4[C][3][b][i]; 100.5[A][1][h]; 100.5[A][5]; Opinion 15-171).
The same rules apply to the judicial association. A judicial association is ordinarily “held to the same standards as an individual judge” (Opinion 19-120, quoting Opinion 18-185). The association may not hold a fund-raiser to finance a public advocacy campaign against the court plan (cf. Opinion 06-67 [“The prohibition against a judge soliciting contributions for a meeting applies equally to a solicitation by a judges’ association.”]).
Finally, as the described campaign advertisements, lawn signs, and palm cards are ethically impermissible, neither the association nor an individual judge may expend funds for this purpose, regardless of the source of the funds.