September 12, 2019
Digest: A judge may speak about his/her judicial experiences at a federal legislator’s non-partisan, non-political youth cabinet meeting.
Rules: 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.5(A)(1)(g); Opinions 18-72; 17-38; 15-133; 12-49; 88-136; 88-32.
A judge asks if he/she may accept a federal legislator’s invitation to speak about his/her judicial experiences at the legislator’s youth cabinet meeting. As described on its website, the youth cabinet is a “non-partisan, non-political entity” consisting of high school students in the legislator’s district. Cabinet members act as “advisors [to the legislator] on critical issues facing young New Yorkers today” and assemble monthly “to discuss policy, learn about city, state, and federal government, and meet with [the legislator], members of [the legislator’s] staff, community groups and stakeholders, and other elected officials.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extra-judicial activities must be compatible with judicial office and 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 proper performance of judicial duties (see 22 NYCRR 100.4[A]-). While a judge may generally speak, write and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]), subject to generally applicable limitations on judicial speech and conduct (see e.g. 22 NYCRR 100.3[B] [public comment rule]), he/she may not become unnecessarily involved in matters of public controversy (see e.g. Opinion 17-38). Moreover, unless an exception applies, a judge must not “directly or indirectly engage in any political activity” (see 22 NYCRR 100.5[A]) or “attend political gatherings” (22 NYCRR 100.5[A][g]). The Rules define “political organization” broadly as “a political party, political club or other group, the principal purpose of which is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).
Here, the proposed topic is a generally permissible one (see e.g. Opinion 15-133 [a judge may attend a foreign consulate’s reception for its ambassador and may speak at the consulate about the judge’s personal experiences in becoming a jurist]).
Accordingly, the key question is whether the proposed forum is permissible. We have said a judge may not speak about gun laws at a politically sponsored gun policy forum (see Opinion 18-72). Nor may he/she attend or speak at events sponsored by a political organization, even on non-political topics (see e.g. Opinions 88-136 [family court judge may not speak at a political club about the function of the family court]; 88-32 [judge may not speak at a political club about the legal system]). Nonetheless, a judge may participate in some activities sponsored by elected public officials without engaging in impermissible political activity. For example, in Opinion 12-49, we concluded a judge may preside over a mock video arraignment for educational purposes during a county executive’s state of the county address. Although we recognized the county executive is an elected public official and the address “may be designed to further his/her particular non-judicial policy goals or initiatives and also to highlight the county executive’s accomplishments in hopes of furthering his/her political career,” we concluded the judge’s proposed participation could not create “any reasonable public perception that the judge is endorsing the county executive or his/her policies” (id.).
Here, too, although the youth cabinet is sponsored by an elected official, it is not sponsored by the official’s campaign committee or any other political organization, and is expressly non-partisan and non-political in nature. Indeed, its role is both educational and advisory, consistent with its members’ status as high school students. On these facts, we believe the legislator’s youth cabinet is not a “political organization” under the rules (22 NYCRR 100.0[M]). Moreover, the proposed topic of discussion (the judge’s judicial experiences) is entirely consistent with the cabinet’s educational purposes, as it will provide these students an opportunity to learn about another branch of government.
We therefore conclude the judge may attend and speak at the cabinet meeting, provided he/she adheres to the public comment rule and other generally applicable limitations on judicial speech and conduct (see e.g. Opinion 15-133; 22 NYCRR 100.3[B] [judge must not publicly comment on pending or impending cases in the United States or its territories]).