Opinion 25-60

March 27, 2025

Digest:  (1) A judge may publicly support or oppose proposed legislative changes affecting the terms or conditions of judicial service, and therefore may contact his/her state representatives and urge them to abolish the so-called “death gamble” for judges.
(2) 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.  In doing so, however, the judge should not comment on what positions the legislators should take with respect to unrelated legislation and therefore the judge should not suggest filibustering every vote on all legislation.
(3) A judge may speak publicly about the importance of judicial independence and the rule of law, and thus may speak to federal legislators on this topic.  In doing so, however, the judge should not comment on what positions the legislators should take with respect to unrelated legislation.
(4) Whether a particular federal executive or congressional decision affects a judge personally requires a fact-specific analysis.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(1); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 23-61; 23-26; 23-15; 19-120; 17-54; 17-38.

Opinion:

          The inquiring full-time judge asks about reaching out to state or federal legislators on various topics.  We summarize and address these questions individually below.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge generally may speak, write, and participate in extra-judicial activities, subject to limitations (see 22 NYCRR 100.4[B]).  For example, a judge must not make any public comment on a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).  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; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  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]) or “when acting pro se in a matter involving the judge or the judge’s interests” (id.).  Further, although a judge must not “directly or indirectly engage in any political activity” (see 22 NYCRR 100.5[A][1]), judges may nonetheless engage in limited political activities “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]; Opinion 17-38 [noting many restrictions]).

1.  Death Gamble Legislation

          The judge first asks if he/she may contact his/her state representatives and urge them to vote for legislation to abolish the so-called “death gamble” for judges.  As explained in the New York Law Journal (paragraph break omitted):

Under the current law, the beneficiaries of justices who die in office are entitled to a one-time lump sum payment equal to three times their annual salary.  If the justice retires before dying, those beneficiaries are entitled to the full amount of the pension reserves to which the justice has contributed, which is often a significantly higher amount for justices with longtime service.  Making matters worse, the lump sum benefit is reduced 4% for each year the judge continues in service after turning 60.

(Brian Lee, On Governor’s Desk: NY ‘Death Gamble’ Bill That Seeks to Correct Pension Anomaly for Judges, NYLJ, Dec. 6, 2024).  As the judge notes, the proposed legislation would directly affect the personal financial interests of the judge and his/her family.

          We have previously advised that a judge may publicly support or oppose proposed legislative changes affecting “the terms or conditions of judicial service” and may do so by, inter alia, advocating in person or in writing to public officials (Opinion 19-120).  The proposed conduct is therefore permissible on that ground.

We have also advised that “judges may engage in certain public advocacy activities where the judge has a clear and direct personal interest at stake” (Opinion 17-38 [citing prior opinions]).  Here, the legislation affects the judge’s direct personal interests, and the proposed conduct is therefore permissible for that independent reason as well (see e.g. Opinions 23-61; 23-26).

2.  Efforts to Rescind Citizenship of Naturalized Citizens Based on Their Performance of Judicial Duties

          The judge is a naturalized citizen of the United States and is concerned about calls for “denaturalizing US citizens and deporting them based on their political views” in light of recent executive orders and actions.  In this context, the judge asks if it is permissible to “call my two US Senators and tell them that I think they should take a harder line or whatever steps are possible including filibustering every single vote on all legislation to make sure that my citizenship, which was obtained through legal channels [some years ago], not be rescinded due to statements that I make in my decisions.”

          The inquiring judge has identified a uniquely non-speculative and personalized interest—the judge’s interest as a naturalized citizen in retaining U.S. citizenship—which here dovetails with the need to protect the judicial independence of a judge who is a naturalized citizen, given that a judge must “not be swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B][1]).

          Accordingly, we conclude this judge 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 (see e.g. Opinion 19-120).  Such issues clearly impact the law, the legal system, and the administration of justice as well as the inquiring judge personally.

          In doing so, however, the judge should neither comment on unrelated legislation nor request the legislators take particular positions on such legislation (cf. Opinions 23-15 [advising judge not request federal and state legislators protect power grids from electromagnetic nuclear attack]; 17-38 [prohibiting judges from calling senate committee to express opinion on proposed executive branch appointment unrelated to law, legal system, or administration of justice, or direct personal interest of inquirers]).

          Therefore, the judge may not suggest “filibustering every single vote on all legislation.”

3.  Judicial Independence and the Rule of Law

          The judge is concerned that “federal judicial orders have been ignored recently” which undermines the law, the legal system, and the administration of justice.  The judge suggests that open disregard of federal judicial orders “affects me professionally/personally because I often issue orders to get to the resolution of the proceeding and if those are ignored then the toolset I use to dispense justice has been destroyed.”  Thus, the judge asks if it is permissible to call federal legislators “and urge them to uphold the adherence to judicial orders by any means necessary up to and including not voting on unrelated legislation.”

          A judge may speak publicly about the importance of judicial independence and the rule of law (see e.g. Opinion 17-54), and therefore may speak to federal legislators on this topic (see generally Opinion 19-120).  In doing so, however, the judge again should not comment on what positions the legislators should take with respect to unrelated legislation (cf. Opinions 17-38; 23-15).

4.  Other Federal Executive or Congressional Decisions, Including the Shuttering of Certain Federal Agencies or Divisions

          Finally, the judge asks “to what extent can I reach out to my legislators/executives and tell them how to act”?  The judge argues that “the majority of federal executive and congressional decisions affect me personally.”  By way of illustration, the judge suggests that (1) “the eradication of the EPA” could affect “my and my family’s health” and (2) as a member of a minority group, “the Department of Education’s shutting down of its Civil Rights investigatory body” could affect the judge’s “child’s ability to avoid discrimination in [his/her] primary education.” 

          Whether a particular federal executive or congressional decision affects a judge personally requires a fact-specific analysis.  On the minimal facts provided, the judge has not identified any cognizable personal interest of the judge that will be affected by the shutdown of the specific bodies described, but instead a generic public interest—much like a public interest in protecting the power grids from electromagnetic nuclear attack—that is not particularized to the judge (compare Opinion 23-15 [prohibiting judge from advocating for protecting power grids from electronuclear attack] with Opinion 23-61 [permitting judge to publicly advocate about planned discharge upstream from the waterfront town where judge resides]).  Thus, we conclude the judge may not reach out to legislators or executive branch officials on a proposed shutdown of the Environmental Protection Agency or the Department of Education’s Civil Rights investigatory body.