Opinion 26-24

February 5, 2026

Digest: Judges may not write a letter to their Congressional representatives in response to high-profile and intensely controversial federal immigration actions in Minneapolis, asking the legislators to take immediate action to guarantee that the rule of law will be preserved and that the government of the United States will follow its own rules with rigor and good faith.

Rules:    22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 25-125; 25-85; 25-68; 25-60; 25-22; 20-105; 20-42; 19-120; 19-106; 17-54; 16-135; 13-63; 04-123.

Opinion:

          The inquiring judges wish to contact their Congressional representatives regarding “recent events in Minneapolis.”  They highlight two individuals who have died at the hands of federal immigration agents, the federal response to these deaths, widespread protests, and certain related issues.  They are particularly concerned about what they see as misinformation and assertions of unrestrained power on the part of the federal executive branch.  The judges believe silence will create an impression of “apathy” or “callous indifference” and violate their constitutional oaths.  Accordingly, they ask if they may write a letter to their Congressional representatives, urging them to “take immediate action to guarantee that the rule of law will be preserved and that the government of the United States will follow its own rules with rigor and good faith.”

          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 the judge’s other activities (22 NYCRR 100.3[A]).  Accordingly, a judge’s 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,” nor (3) “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][1]-[3]).  A judge must not make any public comment on a pending or “reasonably foreseeable” proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]; 100.0[V] [defining “impending proceeding”]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).  Although a full-time judge ordinarily must not “appear at a public hearing before an executive or legislative body or official,” the Rules expressly permit full-time judges to do so “on matters concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][1]).  Similarly, while a judge must not “directly or indirectly engage in any political activity” (22 NYCRR 100.5[A][1]), a judge may do so, with limitations, “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]).

          The Rules Governing Judicial Conduct “broadly permit judges to participate in efforts to improve the law, the legal system, and the administration of justice” (Opinion 19-120 [citations omitted]).  Thus, we have advised that a judge may contact legislators concerning matters that fall within these specific areas (see id.).  For example, we have said “a judge who is a naturalized citizen may speak to government officials, including federal legislators, to urge them to oppose proposed or enacted executive orders, policies, or legislation which seek to rescind citizenship of naturalized citizens based on their performance of judicial duties, including their judicial decisions or other statements made in their official capacity as judges” (Opinion 25-60).  We have also advised that a judge may meet privately with a state legislator to discuss legislation that proposes judicial upgrades (see Opinion 13-63) and “may publicly advocate for a change in the Penal Law by writing to executive and legislative bodies and/or officials, as well as other potentially interested parties, subject to generally applicable limitations on judicial speech and conduct” (Opinion 16-135).

          Along similar lines, we have advised that a judge may discuss and publicly advocate for judicial independence and the rule of law in a variety of non-political forums, subject to generally applicable restrictions on judicial speech and conduct.  For example, we said a judge may participate in a college club panel discussion about the rule of law in the United States (see Opinion 25-125) or in educational programs promoting the rule of law overseas (see Opinion 25-22).  Our opinions have emphasized various aspects of a judge’s speech limitations depending on the specific circumstances described in the inquiry.  For example, we said a judge may speak to federal legislators about “the importance of judicial independence and the rule of law,” but “should not comment on what positions the legislators should take with respect to unrelated legislation” (Opinion 25-60).  We also said a “judge may write a letter to the editor about ‘recent attacks by public officials against judges,’ but must not respond directly to the public officials, nor comment on the specific pending or impending cases which ostensibly occasioned the officials’ inflammatory rhetoric” (Opinion 25-68).  Likewise, while a judge may discuss judicial independence at a court-sponsored Law Day event, we advised that the judge “should not publicly criticize or attack a sitting public official, or comment on his/her remarks” but should instead “focus on the law to avoid casting doubt on his/her ability to perform judicial functions appropriately consistent with his/her legal and ethical duties” (Opinion 17-54).

          Notwithstanding that judges may “advocate for judicial independence and the rule of law in a myriad of other ways” (see Opinion 25-85), we have cautioned judges to avoid prohibited political activity (see 22 NYCRR 100.5[A][1]) and take care that their advocacy does not compromise public confidence in their impartiality (see 22 NYCRR 100.2[A]).  For example, while a judge ordinarily may speak at a Law Day event “devoted to the rule of law,” we said a judge must not do so “at a high-profile ‘rally’ which has become a heavily politicized ‘call to action’ against the current presidential administration” (Opinion 25-85).  We have also advised that “a judge must not insert him/herself unnecessarily into the center of controversy, for example, by taking a position that is so controversial that it is incompatible with judicial office” (Opinion 20-42 [citation and internal quotation marks omitted]).

          Applying those principles, we have said a judge may not write a letter to a county official that states the judge’s position on a matter that “relates to a substantial political controversy; and, in addition, the controversy is likely to lead to litigation” (Opinion 04-123).  Likewise, we said a judge may not participate in an article or editorial raising concerns about withdrawal of U.S. military forces from an area where the judge previously served while in the armed forces (see Opinion 19-106).  We explained that such comments on “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” (id. [citation and internal quotation marks omitted]).  Likewise, a judge may not participate in a bar association’s task force on the rule of law which will address issues that “while seemingly innocuous” would involve him/her “in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial” (Opinion 20-105 [citation omitted]).

          Here, the inquiring judges’ proposed letter to their representatives in Congress, directing them to “take immediate action” on a matter of national governance, crosses into political advocacy (see e.g. Opinions 20-105; 19-106).  The judges’ core concerns, as described in the inquiry, implicate contested political questions, seek to influence federal executive and legislative branch actions and would thrust the judges unnecessarily into matters of substantial public and political controversy, many of which are the subject of pending or “reasonably foreseeable” litigation (see generally Opinion 04-123; 22 NYCRR 100.3[B][8]; 100.0[V] [defining “impending proceeding”]).

          Accordingly, the inquiring judges may not write a letter to their Congressional representatives in response to high-profile and intensely controversial federal immigration actions in Minneapolis, asking the legislators to take immediate action to guarantee that the rule of law will be preserved and that the government of the United States will follow its own rules with rigor and good faith.