Opinion 23-122
October 26, 2023
Digest: A judge may attend generic cultural/holiday celebrations hosted by elected public officials, where such events are free and open to the public and are paid for by state/government funds rather than campaign funds.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 23-98; 19-129; 18-147; 13-22; 12-49; 07-211; 98-37; 97-31; 89-26.
Opinion:
A full-time judge, who is not within their window period for election or re-election to judicial office, asks if it is permissible to attend cultural celebrations and events celebrating generic holidays (such as Veterans Day, Mother’s Day, or Father’s Day) when such events are hosted by an “elected non-judicial official,” and are “paid for by state/government funds and NOT the [official]’s election campaign funds.” The specific example given is that of an elected legislator’s event celebrating a cultural heritage month, which offers “food, music, and fun” and is both free and open to the public.
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 may engage in extra-judicial activities that are not incompatible with judicial office and that do 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 proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). However, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).
Outside the applicable window period, a judge must not attend politically sponsored events, even for a non-political purpose (see e.g. Opinions 07-211 [judge may not attend a holiday party hosted by a friend who is federal legislator, when the party is held at a commercial venue and financed with the friend’s campaign funds]; 89-26 [judge may not participate in judging a high school essay contest, where the contest is sponsored by a political club]; 97-31 [judge may not attend free “economic development” breakfast with legislator, where the breakfast is sponsored by the legislator’s campaign committee]; 13-22 [judge may not participate in a politically sponsored sporting event in which one political party’s team will compete against another political party’s team, in order to improve both parties’ public image]; 19-129 [judge may not participate in a social event sponsored by a local political party in which children would meet with local judges to learn about the court system]).
Nonetheless, where an event is not paid for by campaign funds or otherwise politically sponsored, the fact that it honors or is hosted by another public official does not necessarily preclude a judge’s participation (see e.g. Opinions 23-98 [a judicial association may honor an elected official at a non-fund-raising event for their role in increasing diversity in the judiciary, provided the event is not political]; 98-37 [a judge may attend a non-political ceremony honoring Italian-Americans who have been elected to public office where the event is not a political gathering]; 12-49 [judge may preside over a mock video arraignment for educational purposes during a county executive’s state of the county speech]).
Here, the judge asks about attending cultural celebrations and events recognizing generic holidays such as Veterans Day, Father’s Day and Mother’s Day, that are hosted by elected nonjudicial officials. In construing this request, we note the illustrative example given in the inquiry, of a free public event hosted by an elected legislator to celebrate a cultural heritage month, with food and entertainment. In our view, the mere fact that such an event is hosted by an elected nonjudicial official does not render it an impermissible political gathering (see e.g. Opinion 23-98). Where a generic cultural/holiday celebration is a non-political, non-fund-raising event, is free and open to the public, and will be paid for by state/government funds and not the elected official’s campaign funds, we see no impropriety in a judge attending such events.
As a reminder, this response focuses solely on generic cultural/holiday celebrations sponsored by a public official, rather than other types of events which are not before us (see e.g. Opinion 18-147 [judge who “sometimes presides in arraignments or issues orders of protection” must not participate in a free public athletic/sporting event organized exclusively by the District Attorney’s office “to help raise awareness and prevent domestic violence”]).