Opinion 17-38
March 16, 2017
Digest: (1) A judge who wishes to participate in a high-profile, apparently non-partisan march, whose purpose is to recognize the importance of scientific endeavors and rational thought in society, must monitor the march’s agenda and publicly reported affiliations and sponsorships in the period leading up to the event. The judge must not participate in the march unless the judge determines (a) the march is not co-sponsored by or affiliated with any political organization; (b) the march does not support or oppose any political party or candidate for election; (c) the judge’s participation will not involve the judge in impermissible political activity; and (d) the judge’s participation will not insert him/her unnecessarily into public controversy.
(2) A judge may not (a) call a Senate Committee to express an opinion on a pending federal executive branch appointment; (b) sign a MoveOn.org petition concerning a federal executive branch appointment, whether as a private citizen or otherwise; or (c) participate in a local political rally, march or demonstration sponsored by grassroots organizations, even if he/she would refrain from any speaking role.
Rules: 22 NYCRR 100.0(M); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1); 100.5(A)(1)(g); Opinions 16-169; 16-85; 15-210; 14-117; 13-189/14-02; 13-17; 06-93; 04-24; 02-116; 98-101; 97-36; 92-21.
Opinion:
Several full-time judges ask if they may join in activities bearing an arguably political or quasi-political component. Specifically, they wish to join in an upcoming March for Science, weigh in on certain federal executive branch appointments, and participate in certain unspecified local political rallies, marches, or demonstrations organized by grassroots organizations.
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 full-time judge must not appear at a public hearing before an executive or legislative body or official except on matters relating to the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]). As for political activities, Section 100.5(A)(1) provides:
Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include:
(a) acting as a leader or holding an office in a political organization; (b) ... being a member of a political organization other than enrollment and membership in a political party; (c) engaging in any partisan political activity, provided that nothing in this section shall prohibit a judge or candidate from participating in his or her own campaign for elective judicial office ...; (d) participating in any political campaign for any office or permitting his or her name to be used in connection with any activity of a political organization; (e) publicly endorsing or publicly opposing (other than by running against) another candidate for public office; (f) making speeches on behalf of a political organization or another candidate; (g) attending political gatherings; (h) soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate; or (i) purchasing tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose.
Thus, Section 100.5 starts with an across-the-board prohibition of any direct or indirect political activity by judges before delineating three discrete exceptions to the blanket prohibition. Accordingly, the ensuing recitation of examples of specific prohibited political activities can by no means be seen as all-encompassing or comprehensive, lest the broad reach of the prohibition be eviscerated.
Nevertheless, this Committee recognizes that a blanket prohibition of all political activity is a heavy burden to impose on judges, many of whom hold elective offices. As a result, our prior opinions have advised that judges may engage in certain public advocacy activities where the judge has a clear and direct personal interest at stake (see 22 NYCRR 100.4[C][1]). Thus, a judge may circulate a petition to force a referendum on a proposed sale of a nearby parcel of land owned by the local school district (see Opinion 16-169); speak at a public hearing regarding power lines to be located near judge’s house (see Opinion 06-93); and speak about the proposed re-zoning of property owned by the judge (see Opinions 02-116; 92-21). In addition, a judge may write to a governmental authority about a proposed traffic light near the judge’s home (see Opinion 97-36) or to the State Liquor Authority regarding the renewal of a liquor license for an establishment near the judge’s home (see Opinion 04-24).
In each of the above cases, the Committee advised judges they may engage in political activity related to the judges’ personal interests. However, the Committee has been unwavering in insisting upon the narrow-tailoring of these exceptions in order to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust. In Opinion 13-189/14-02, for example, this Committee found that “a judge’s association may seek repeal or amendment of specific SAFE Act provisions which affect them as sitting judges, as such provisions clearly relate to the administration of justice.” Nevertheless, the same Opinion found that “a judges’ association may not seek the repeal of the SAFE Act in its entirety, as the law, when considered as a whole appears to relate primarily to highly controversial gun control issues which do not clearly and directly implicate the law, the legal system or the administration of justice within the meaning of the Committee’s prior opinions” (id.).
Given the Rule’s language and the Committee’s prior opinions, 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.
1. March For Science
The judges first ask if they may attend the “March For Science” scheduled for April 22, 2017 in several cities. The March is, unquestionably, a high-profile event, and judges should very carefully consider the risks of publicly associating themselves with it in light of ongoing media coverage and possible changes in its purpose, activities, sponsorship, and/or affiliations.
According to the inquiry, the stated mission of the March For Science is to refrain from silence as persons who value science in their lives. On this basis, the March For Science purports to be a non-partisan gathering advocating for a recognition of the importance of scientific endeavors and rational thought in society. However, a review of media reports regarding the March for Science reveals that the March has only recently been proposed and organized and, as such, there are conflicting reports about the full agenda of the March as it develops. Therefore, judges must be careful to monitor the agenda and positions taken by organizers of the March. Judges must be careful not to be “associated with matters that are the subject of litigation or public controversy” (Opinion 98-101). Judges must also avoid involvement with “political organizations,” which this Committee has defined as any “group whose principal purpose is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]; see Opinion 15-210).
Should the March For Science or its organizers become involved in or suggest they will become involved in litigation related to the March’s agenda, advocate for or against the election or appointment of specific individuals to public office, or become the subject of public controversy, then judges should not attend the March For Science because it will be more of a platform for political protest against the perceived preference among some individuals and groups which ignore or discredit the scientific consensus in favor of what others perceive to be “junk” science, disconnected from critical thinking and fact-based solutions. If that be the case, the March may be seen as related primarily to highly controversial environmental issues such as global warming and resource depletion, matters that do not clearly and directly implicate the law, the legal system or the administration of justice in a manner consistent with this Committee’s prior Opinions. The Committee also trusts that a judge will exercise discretion and leave the area on the day of the March if the judge finds that political signs unexpectedly dominate the occasion.
In sum, a judge who wishes to participate in a high-profile, apparently non-partisan march intended to recognize the importance of scientific endeavors and rational thought in society must monitor the march’s agenda and publicly reported affiliations and sponsorships in the period leading up to the event. The judge must not participate in the march unless the judge determines (a) the march is not co-sponsored by or affiliated with any political organization; (b) the march does not support or oppose any political party or candidate for election; (c) the judge’s participation will not involve the judge in impermissible political activity; and (d) the judge’s participation will not insert him/her unnecessarily into public controversy.
2. Federal Executive Branch Appointments
The judges next ask if they may call a Senate Committee to express, as private citizens, an opinion on a federal executive branch appointment. They give, as an example, the appointment of Stephen K. Bannon to the National Security Council. This executive branch appointment does not clearly pertain to the law, the legal system or the administration of justice, and the Committee perceives no direct, personal interest these judges could possibly have in this appointment. The judges’ proposed intervention in the appointment is thus impermissible under the rules and prior opinions (see 22 NYCRR 100.4[C][1]; 100.5[A][1]).
The inquiring judges also ask if they may sign a petition electronically as a private citizen. As an example, the judges wish to sign a petition prepared by MoveOn.org to oppose the President’s decision to seat Stephen K. Bannon on the National Security Council. There may potentially be instances where a judge would be permitted to sign a petition either electronically or in person. This would be most likely, for example, if the petition directly related to a specific personal interest of the judge – i.e., in circumstances where a judge would be permitted to appear before a governmental body or write a letter to the editor or otherwise publicly express his/her views on a matter involving the judge’s personal interests (see e.g. Opinions 16-169; 06-93; 04-24; 02-116; 97-36; 92-21). Even in such cases, however, a judge is not free to sign all conceivable petitions relating to his/her personal interests or relating to improvement of the law, the legal system or the administration of justice. For example, a judge may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator (see Opinion 13-17). In the Committee’s view, a judge also should not sign a petition sponsored by MoveOn.org, which the Committee has already identified as a “political organization” under the Rules (see Opinion 14-117; 22 NYCRR 100.0[M]).
Thus, regarding the specific example given, these judges may not sign a MoveOn.org petition concerning a federal executive branch appointment, whether as private citizens or otherwise.
3. Grassroots Rallies, Marches, and Demonstrations
Finally, the judges ask if they may participate, without speaking, in a local rally, march or demonstration sponsored by grassroots organizations. As an example, the judges list a rally recently held in opposition to the so-called Trump Muslim Ban. But, 22 NYCRR 100.5(A)(1)(g) specifically prohibits judges from attending political gatherings. This is another general question that, like signing an electronic petition, would generally be prohibited political activity, subject to specific facts fitting within a narrow exception to the blanket prohibition. As to the specific example these judges provided, participation in such a gathering is impermissible. Clearly, it involves great public controversy, which is also the subject of litigation.
The Committee would also remind judges that “[c]oncealing one’s name and judicial status does not ordinarily render prohibited [political] conduct permissible” (Opinion 16-85).
The prohibition on political activity is a heavy burden. However, it is one individuals must accept if they wish to take on the sensitive and critically important role of judges in the Unified Court System, because it is absolutely necessary to maintain an impartial judiciary both in practice and perception.