September 12, 2019
Digest: A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); Opinions 19-29; 17-70; 17-38; 16-85; 13-09/13-52; 04-123.
A full-time judge, who previously served overseas in the armed forces, is concerned about reported negotiations that could result in “an American pullout from” the area. The judge and his/her former military colleagues “are fearful that the withdrawal of U.S. forces ... will result in, among other things, lethal retribution against [locals] alongside whom [they] served, and the abrogation of women’s rights, which advanced substantially during the U.S. presence.” The judge asks if he/she may, either alone or with former colleagues, write an editorial, article, or letter to the editor expressing these concerns, without referring to any political party. The judge further asks if he/she may identify him/herself as “a judge who formerly served” in the armed forces or if he/she should “solely us[e]” his/her “retired military rank”.
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]). As judicial duties must take precedence (see 22 NYCRR 100.3[A]), a judge’s extra-judicial activities must comport with his/her office and not (1) cast reasonable doubt on his/her capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with judicial duties (see 22 NYCRR 100.4[A]-). Subject to these and other limitations, a judge may generally speak, write and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]). However, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A]) and may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
A judge may generally write or speak publicly on a matter “where the judge has a clear and direct personal interest at stake” (Opinion 17-38), provided he/she does not reference his/her judicial status or otherwise use judicial prestige to promote that interest (see Opinion 04-123; 22 NYCRR 100.2[C]). For example, a judge may, as a private citizen, “write to a governmental authority about a proposed traffic light near the judge’s home or to the State Liquor Authority regarding the renewal of a liquor license for an establishment near the judge’s home” (Opinion 17-38 [citations omitted]). However, a judge may not engage in a matter of substantial public and political controversy that goes beyond his/her strictly private interest (see e.g. Opinions 17-70; 04-123). Thus, we concluded a judge’s status as a former county legislator does not justify his/her weighing in on a controversial question “growing out of [that] role” (Opinion 04-123). Similarly, a court attorney-referee who is an ordained rabbi may not comment publicly “on non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict” (Opinion 17-70).
On these facts, the judge’s direct personal interests are not clearly implicated by the presence or withdrawal of U.S. troops from the area in which he/she previously served. Thus, the judge’s comments on these highly controversial geopolitical issues involving American foreign policy and military operations, are likely to be seen as politically partisan and “would unnecessarily and deliberately insert the judge directly into the center of controversy” (Opinion 19-29; see also e.g. Opinions 17-38 [judge must ensure his/her participation in a high-profile, apparently non-partisan march “will not insert him/her unnecessarily into public controversy”]; 13-09/13-52 [judge “should not editorialize or comment on the constitutionality or propriety of” certain types of military proceedings]).
We therefore conclude the judge may not write or join the proposed editorial or article.
Accordingly, we need not reach the question of how the judge should identify him/herself. While a judge should omit any reference to his/her judicial status when advancing his/her own private interests, we note that omission of the judge’s name or judicial title from this proposed editorial or article would not make his/her participation permissible (see e.g. Opinions 04-123; 16-85 [judge may not engage anonymously in otherwise prohibited political activity]).