May 10, 2018
Digest: A judge may not speak about gun laws at a politically sponsored gun policy forum.
Rules: 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.5(A)(1)(b); 100.5(A)(1)(g); Opinions 17-70; 17-38; 16-135; 15-188; 14-117; 14-95; 13-92; 10-133; 07-211; 98-101; 88-136; 88-32.
A judge asks if he/she may give an educational presentation at an upcoming gun policy forum organized by a local branch of Indivisible. The judge would share his/her “knowledge and research around gun laws” and what he/she “think[s] the general public should know about guns, related laws, and how the court system handles these cases.” Other speakers would include a presenter on “gun violence reduction,” a “politically moderate gun owner,” the District Attorney, and various other “Republican, Democratic and unaffiliated speakers.” The gun policy forum “arises as a result of gun violence in our nation’s schools as well as local threats” at nearby public and private schools. Its goal is “to share the facts and information so that the community can 1) work toward bridging the political gap, and 2) agree upon means to protecting our schools and communities.”
The local event organizer says Indivisible is “a national organization that began in response to President Trump’s election” and “therefore is at base, resistant to the Trump agenda and is politically progressive, usually supporting Democrats.” The organization’s website says its “mission is to cultivate and lift up a grassroots movement of local groups to defeat the Trump agenda, elect progressive leaders, and realize bold progressive policies.” The website further offers regular updates and calls to action to “resist the GOP’s agenda, elect local champions, and fight for progressive policies.”
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]). 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 judge; (2) detract from the dignity of the office; or (3) interfere with his/her judicial duties (see 22 NYCRR 100.4[A]-). 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]). For example, unless an exception applies, a judge must not “directly or indirectly engage in any political activity” (see 22 NYCRR 100.5[A]), be “a member of a political organization” (22 NYCRR 100.5[A][b]), 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]).
Judges must be sure their extra-judicial activities, including lectures and teaching, do not compromise public confidence in their impartiality (see e.g. Opinion 16-135). Thus, we have advised judges not to be “associated with matters that are the subject of litigation or public controversy” (Opinions 17-38; 98-101), since involvement in matters of “substantial public controversy” may cast reasonable doubt on their ability to be impartial in performing judicial functions (see id.). For example, a judge may not participate in a high-profile “March for Science” unless he/she determines, among other considerations, that “participation will not insert him/her unnecessarily into public controversy” (see Opinion 17-38). Likewise, a court attorney-referee who is also an ordained rabbi may teach, preach and write on Israel-related issues concerning the law, the legal system or the administration of justice, but not on non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict (see Opinion 17-70). Significantly, we have also advised that a sitting judge must not serve on a panel that will discuss “the principles of legislative redistricting and the governing law,” because “the subjects are inherently political and highly controversial” (see Opinions 10-133; 15-188).
We consider the National Women’s Political Caucus a “political organization” under the Rules (22 NYCRR 100.0[M]), because it “identifies viable candidates ... and assists them in getting elected through financial contributions, campaign volunteers and technical assistance” (Opinion 98-101 [membership “would constitute impermissible political conduct”]). We reached a similar conclusion concerning a not-for-profit organization that “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government” and, therefore, advised that a judge may not make donations to the organization (Opinion 14-95). For similar reasons, we found Emily’s List, MoveOn.Org, and J Street to be “political organizations” under the Rules (see Opinions 14-117; 17-38; 17-70). Because a principal purpose of Indivisible is to further the election of candidates to public office, we conclude Indivisible likewise qualifies as a “political organization.”
A judge who is not in his/her window period for election may not attend or speak at an event sponsored by a political organization, even on a non-political topic (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]; 17-70 [court attorney-referee may not attend events sponsored by a political organization such as J Street]; 07-211 [judge may not attend a politically sponsored holiday party]; cf. Opinion 13-92 [“even if the topic of the meeting were otherwise permissible, [a] judge must not attend political gatherings unless he/she is a declared candidate for election within his/her window period”]).
Here, as the forum is sponsored by a political organization, the judge must not attend. Moreover, although the judge was invited to speak about his/her “knowledge and research around gun laws,” the overall event is a gun policy forum; it is intended to provoke debate on how to curb gun violence in schools and the community. Gun violence is one of the most politically controversial topics in the country today, and the need for and/or effectiveness of gun laws in preventing gun violence is surely at the core of the controversy.1 We conclude the subject of gun laws, in the context of a gun policy forum, is inherently political and highly controversial, and therefore the judge also must not participate for this reason (cf. Opinion 10-133 [judge may not participate in panel concerning redistricting laws]).
1 Gun policy issues have reached the courts as well; there have been several lawsuits against gun sellers and manufacturers, and “[a] coalition of attorneys general” recently sued “to stop a Texas-based company from publishing instructions for 3D-printed guns on its website” (Vanessa Romo, Attorneys General Sue Trump Administration to Block 3D-Printed Guns, NPR, July 30, 2018).