Opinion 25-85
April 28, 2025
Digest: On these facts, a judge must not speak at a high-profile “rally” which has become a heavily politicized “call to action” against the current presidential administration and will be held in a location that is regularly used for political rallies.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.5(A)(1); Opinions 25-60; 24-60; 22-160; 19-120; 17-38; 06-71.
Opinion:
The inquiring judge asks if it is permissible to participate in a Law Day event devoted to the rule of law “by saying a few words on the rule of law and re-administering the lawyer’s oath” to attendees. The judge proposes to leave promptly after concluding his/her part. The event is co-sponsored by several bar associations and a not-for-profit organization which is known for its extensive litigation and lobbying. It is not sponsored or co-sponsored by any political party or political organization. However, the event is being billed as a “rally” and is being held outdoors in a location where political rallies are held, including a separately organized rally later the same day. When the judge was originally invited to participate, the event had appeared to be a non-partisan event dedicated to promoting and/or celebrating the rule of law under the auspices of several bar associations. Over time, however, the judge became concerned by emails and press releases from the co-sponsors and from related interviews and press coverage, which suggest that this “rally” has become a heavily politicized “call to action” against the current presidential administration. The judge is not in his/her window period for election or re-election to judicial office.
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 his/her other activities (see 22 NYCRR 100.3[A]).
A judge may publicly advocate for judicial independence and the rule of law in a wide variety of forums, subject to generally applicable limitations (see Opinion 19-120; 22 NYCRR 100.5[A][1]). Indeed, in the context of an inquiring judge’s concern “that ‘federal judicial orders have been ignored recently’ which undermines the law, the legal system, and the administration of justice,” we recently advised that 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” (Opinion 25-60). Given the judge’s expressed desire to urge such legislators to exert political pressure by withholding their votes on all matters, however, we advised that the judge “should not comment on what positions the legislators should take with respect to unrelated legislation” (id.).
Still, in Opinion 17-38, we advised that rallies, marches, and demonstrations “would generally be prohibited political activity, subject to specific facts fitting within a narrow exception to the blanket prohibition.” In Opinion 22-160, we recognized that “our determinations are necessarily fact-specific” in this area. Opinion 17-38 provides the following guidance:
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.
Here, a review of the rally’s “agenda and publicly reported affiliations and sponsorships in the period leading up to the event” (id.) makes clear that it has become a heavily politicized “call to action” against the current presidential administration. Moreover, it is being heavily promoted as a “rally” and will take place in a common location for political rallies. On these facts, we conclude the judge may not speak at the rally and ceremonially re-administer the constitutional oath to lawyers in attendance, even if the judge would leave immediately afterward (cf. Opinions 24-60 [prohibiting judge not in window period from attending impermissible legislative caucus weekend, even as volunteer chaperone for students]; 06-71 [advising judge not in window period may not administer oath of office to president-elect of political club]).
Again, we reiterate and emphasize that judges may still advocate for judicial independence and the rule of law in a myriad of other ways, such as by (a) writing and submitting letters, articles, or editorials to newspapers and other publications; (b) advocating in person or in writing to the public officials, governmental bodies, and labor unions; (c) testifying at public hearings; and (d) speaking at public or private forums, other than rallies, demonstrations and marches, partisan political gatherings, or meetings of a political party or committee (cf. Opinion 19-120). That such matters may sometimes be controversial and the judge’s views may not be welcomed by public officials and may, in fact, be contrary to the preferences of a particular governmental administration does not render them improper.