Opinion 20-209

January 28, 2021

Digest:         A full-time judge may not be a member of a bar association task force organized to monitor and discuss fiscal and human rights issues faced by residents of a United States territory.

Rules:          US Const art IV § 3; 22 NYCRR 100.0(V); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(1); 100.5(A)(1); Opinions 20-128; 20-105; 17-70; 17-38; 16-60; 15-188; 10-133.

Opinion:

            A judge asks about the ethical propriety of serving as a member of a bar association’s task force organized to “monitor and discuss, as appropriate, several fiscal and human rights issues faced by the people of Puerto Rico.” Since its inception, the task force has publicly “commented on the actions of various stakeholders impacted by Puerto Rico’s fiscal plan,” which it characterizes as critical to “establishing Puerto Rico’s budget ... and determining the parameters of any consensual agreements or plans of adjustment to re-structure its debt.” The task force has expressed concerns about the impact of the Puerto Rico Oversight, Management, and Economic-Stability Act (PROMESA) on “the human rights of the residents of Puerto Rico and how any mandated austerity measures can be balanced by stimulus measures and other actions designed to maintain the essential services required by the residents of Puerto Rico.”¹ It has also issued letters supporting the proposed Puerto Rico Self-Determination Act2 and permanently exempting Puerto Rico from the Jones Act.3 The judge says the task force does not engage in litigation.

            A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100. 1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). While a judge may participate in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see e.g. 22 NYCRR 100.4[A][1]-[3]), a judge’s judicial duties nonetheless “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must not publicly comment on any pending or “reasonably foreseeable” court proceeding in the United States or its territories (22 NYCRR 100.3[B][8]; 100.0[V] [defining “impending” proceeding]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]; cf. Opinion 17-38 [“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”]).

Applicable Principles

            We have said that involvement in matters of “substantial public controversy” may cast reasonable doubt on a judge’s ability to be impartial in performing judicial functions (see e.g. Opinion 20-128). Thus, judges must avoid inserting themselves “unnecessarily into public controversy” in their extra-judicial activities (id.). For example, a judge may not join an informal discussion group with politically connected people to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, and other highly controversial or political matters largely unrelated to the law, the legal system, and the administration of justice (see Opinion 16-60). As we noted (id. [citations omitted]):

a judge “may not enter a public controversy on a matter that goes beyond the judge’s strictly private interest,” where his/her “public involvement in matters of ‘substantial public controversy’ may reasonably cast doubt on the judge’s ability to act impartially in the performance of his/her judicial functions.”

Similarly, a sitting judge must not accept a speaking engagement to 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). In Opinion 17-70, we advised that a court attorney-referee who is 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. We emphasized that permissible Israel-related legal topics were “those directly concerning the rule of law and the administration of justice,” such as (id. [internal quotation marks and brackets omitted]):

the Israeli legal status of the referee’s non-Orthodox rabbinic acts undertaken in the United States and in Israel; the referee’s access to and freedom of worship at holy sites in Israel on terms substantially comparable to all regardless of denomination or gender; and the rule of law and the constitutional separation of synagogue and state in Israel as they pertain to the foregoing.

         Nor does the fact that this task force is sponsored by a bar association automatically make it permissible for a judge. We recently advised that “a full-time judge should not participate, in any capacity, on a bar association subcommittee tasked with addressing issues concerning the upcoming elections” (Opinion 20-105). As we explained (id. [citations omitted]):

Traditionally, participation in the writing of bar association reports and recommendations for changes or improvements in the law has been encouraged across a wide variety of topics. It is assumed that judges can bring a unique perspective from the bench, as to what works and what is problematic, as they relate to the efficient administration of justice.

Here, however, the bar association task force’s reports shed much light on the likely direction of the subcommittee’s assigned task. They are fraught with overtones of polarizing political topics and controversial recommendations. Some of them involve comment on specific pending or impending proceedings in the United States or its territories. Only two of them can arguably be said to focus primarily on improving the law, the legal system, or the administration of justice.... Even so, these issues are inextricably intertwined with volatile political issues.

On balance, we believe the issues to be addressed by this subcommittee, while seemingly innocuous as described, are almost certain to devolve into highly controversial political topics.

Analysis

         Here, the task force focuses on topics that are extraordinarily controversial and political in nature. Questions about Puerto Rico’s right to self-determination, including a possible path to statehood or independence, are quintessentially political and have been debated for many decades (cf. US Const art IV § 3 [“Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”]). Policy decisions about how to balance various competing interests under legislatively-imposed austerity measures are likewise inherently political and do not directly relate to improvement of the law, the legal system, or the administration of justice. Whether or not Puerto Rico should be exempted from the Jones Act or other legislation also appears to be primarily a policy decision for Congress, rather than a matter that requires a uniquely judicial perspective.⁴

         Moreover, in light of the massive ongoing bankruptcy-style litigation under PROMESA, as well as various legal challenges to PROMESA itself, it would be difficult, if not impossible, for a judge to comment on any aspect of Puerto Rico’s fiscal situation without violating the public comment rule (see 22 NYCRR 100.3[B][8]).

         Therefore, we conclude that this judge may not participate in the bar association’s task force.

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¹ In 2016, Congress enacted PROMESA “[i]n a bid to address Puerto Rico’s spiraling debt crisis, ... making the Bankruptcy Code’s municipal restructuring provisions available to the otherwise-ineligible territory” (Lisa Uhlman, Insurers must prove right to hotel taxes held by Puerto Rico agency, judge says, 17 No. 11 Westlaw Journal Bankruptcy 01 [Oct. 1, 2020]). The resulting “Chapter 9-like petitions for the commonwealth and related entities,” ongoing since May 2017, are “massive cases” that “have spawned extensive litigation” (id.; see also e.g. Fin. Oversight and Mgt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 SCt 1649, 207 LEd2d 18 [US 2020]; In re Fin. Oversight and Mgt. Board for Puerto Rico, 2021 WL 140769 [1st Cir Jan. 15, 2021]; Municipality of San Juan v Puerto Rico, 919 F3d 595 [1st Cir 2019]; In re Fin. Oversight and Mgt. Bd. for Puerto Rico, 2020 WL 7693134 [DPR Dec. 23, 2020]; Reuters, Puerto Rico Oversight Board Prevails in Latest Dispute Over Local Statutes, 69 No. 16 BCD-WNC 2 [Dec. 24, 2020] [reporting on the latest 77-page decision issued “three-and-a-half years into Puerto Rico’s bankruptcy-like process aimed at restructuring its $70 billion debt stack”]).

² While the U.S. Constitution seems to vest Congress with the “power to dispose of and make all needful rules and regulations respecting” any U.S. territory (US Const art IV § 3), the Puerto Rico Self-Determination Act would “recognize the right of the People of Puerto Rico to call a status convention through which the people would exercise their natural right to self-determination, and to establish a mechanism for congressional consideration of such decision, and for other purposes” (Puerto Rico Task Force, NYC Bar Association, Letter in Support of Puerto Rico Self-Determination Act, https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/puerto-rico-self-determination-act [Dec. 21, 2020]).

³ Among other things, the Jones Act requires shipping between U.S. ports to be conducted by domestic-flagged ships; “the issue of whether the Jones Act should apply to Puerto Rico at all is a matter of intense debate” (Puerto Rico Task Force, Suspension of Jones Act in Aid of Relief for Puerto Rico, https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/suspension-of-jones-act-in-aid-of-relief-for-puerto-rico [Sep. 27, 2017]).

⁴ While not dispositive here, we note that because the inquirer is a full-time judge, they would not be able to appear before Congress on the topics addressed by the task force (see 22 NYCRR 100.4[C][1]).