Opinion 23-15

February 2, 2023

Digest:         A full-time judge may not request that federal and state legislators protect the power grids from electromagnetic nuclear attack, as this does not relate to the improvement of the law, the legal system or the administration of justice, and does not involve an identified cognizable personal interest. Further, issues generated by the legislation the judge seeks could be controversial or political.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(1); Opinions 20-193; 19-120; 19-106; 17-38; 10-197; 10-156; 10-130; 06-93.

Opinion:

         A full-time judge asks whether it is ethically permissible to contact state and federal legislators to request that they “harden the three national [power] grids and NYS grid as a defense to an electromagnetic nuclear attack.”

         A judge must always avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s impartiality; do not detract from the dignity of judicial office; do not interfere with the proper performance of judicial duties; and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). Finally, a full-time judge may not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]).

         Although a judge may “participate in efforts to improve the law, the legal system, and the administration of justice” (Opinion 19-120), this category is narrowly construed. For example, we concluded a judge may not meet with individual legislators concerning a legislative agenda which does not relate to the improvement of the law, the legal system or the administration of justice (see Opinion 10-130 [regarding safety standards and administrative reform in the sport of boxing]). There, we said participation under these circumstances could readily be perceived as lending the prestige of judicial office to promote private interests (id.). Likewise, we advised that a judge may not call a Senate Committee to express an opinion on a pending federal executive branch appointment, where the appointment “does not clearly pertain to the law, the legal system or the administration of justice” and the judge appears to have no possible “direct, personal interest” in the appointment (Opinion 17-38).

         In matters unrelated to improvement of the law, the legal system, or the administration of justice, we start from a different premise. As we explained in Opinion 17-38:

Section 100.5 starts with an across-the-board prohibition of any direct or indirect political activity by judges before delineating three discrete exceptions to the blanket prohibition. Accordingly, the ensuing recitation of examples of specific prohibited political activities can by no means be seen as all-encompassing or comprehensive, lest the broad reach of the prohibition be eviscerated.

Nevertheless, this Committee recognizes that a blanket prohibition of all political activity is a heavy burden to impose on judges, many of whom hold elective offices. As a result, our prior opinions have advised that judges may engage in certain public advocacy activities where the judge has a clear and direct personal interest at stake (see 22 NYCRR 100.4[C][1]).  

Thus, a judge may “generally write or speak publicly on a matter where the judge has a clear and direct personal interest at stake provided he/she does not reference his/her judicial status or otherwise use judicial prestige to promote that interest” (Opinion 19-106 [citations omitted]). For example, we have said a judge may speak or write to elected officials about natural gas drilling in the county where the judge owns property (Opinions 10-156; 10-197) or about the proposed construction of a power line near the judge’s home (Opinion 06-93). In each of these scenarios, we advised that any comments or advocacy by a judge should be made in the judge’s capacity as a private citizen without reference to their judicial status and without using judicial stationery.

         In contrast, publicly testifying or writing to elected officials on matters unrelated to the law, the legal system or the administration of justice is generally impermissible where a judge’s direct personal interests are not clearly implicated, “in order to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust” (Opinion 17-38). For example, we opined that a judge may not speak at a town board meeting concerning a proposed resolution opposing extension of the big game hunting season, as the judge did not “identify any cognizable personal interest that would be affected by the resolution” (Opinion 20-193). Likewise, engagement in a matter of substantial public and political controversy such as American foreign policy and military operations may impermissibly surpass a strictly private interest (see Opinion 19-106 [judge may not write or join an article or editorial on issues of substantial public controversy]).

         Turning to this inquiry, we recognize that protecting the state and national grids against electromagnetic nuclear attack is a matter worthy of broad public and political concern. However, it neither relates to the improvement of the law, the legal system or the administration of justice, nor involves an identified “cognizable personal interest” belonging to the inquiring judge (see Opinion 20-193). On these facts, advocating for the passage of specific energy legislation could be perceived as improperly lending the prestige of judicial office to promote private interests. We also note that issues generated by the legislation the judge seeks could be controversial or political. Accordingly, the inquiring judge may not ethically contact state and federal legislators to urge them to “harden” the national and state power grids.