September 10, 2020
Digest: Under the circumstances presented, a full-time judge should not participate, in any capacity, on a bar association subcommittee tasked with addressing issues concerning the upcoming elections.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(C)(3); 100.5(A)(1); Opinions 20-112; 17-179; 17-54; 16-93; 16-85; 15-188; 07-170; 07-63; 05-101.
The inquiring full-time judge asks if they may serve on a subcommittee of a bar association’s task force on the rule of law, which will address and report on three issues concerning an upcoming election: pre-election issues, matters impacting the upcoming election, and a focus on possible scenarios following the election. We understand the larger task force has issued reports condemning certain presidential pardons, urging the revision of the National Emergencies Act, calling on Congress to investigate the removal of certain inspectors general from their oversight role, advocating for the conversion of the Guantanamo Bay Military Commission into an Article III court, filing an amicus brief in connection with sentencing of a former White House national security advisor, and calling for an investigation into the use of force in clearing demonstrators from a location in Washington, D.C., prior to an elected federal official’s photo shoot at that location.
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 must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]) but otherwise may generally 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.
Judges are generally encouraged to participate in bar association activities devoted to the improvement of the law, the legal system, and the administration of justice (see Opinion 16-93; 22 NYCRR 100.4[C]). However, this aspirational goal must give way, and the judge may not participate, if the role becomes politically partisan in nature (see Opinion 17-179; see also Opinion 07-170; 22 NYCRR 100.5[A]). If it does, the bar association must be treated like any other organization.
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: the conversion of a highly controversial military commission into an Article III court and a proposed revision to the National Emergencies Act. 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. Pre-election issues and matters impacting the election itself can easily devolve into discussions about voter suppression and mail-in voting, and possible post-election scenarios invite other controversial topics of discussion. A judge’s participation in such reviews and reports would involve them “in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial” (Opinion 15-188).
Finally, the inquirer asks, in essence, if they may take a more behind-the-scenes approach to assisting in the subcommittee’s work; for example, by conducting research, participating in discussions, or voting on propositions, without public acknowledgment of their participation. In our view, even limited and uncredited participation is impermissible (see e.g. Opinions 16-85 [a judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature]). That the judge’s name will not appear in the subcommittee’s reports or records is of no moment.
If the subcommittee’s reports take a stand on questions of substantial public or political controversy, the inquiring judge may be perceived as participating in partisan political issues (see Opinions 07-63; 05-101) or in public criticism or attacks on certain public officials (see Opinion 17-54). Indeed, it would be difficult, if not impossible, for a judge to participate in the subcommittee’s work and proposed dialogue without being seen as aligned in interest with one side or the other (see Opinion 20-112) and/or commenting on reasonably foreseeable litigation concerning the election results (22 NYCRR 100.3[B]).
Thus, we conclude the inquiring judge may not participate in this subcommittee, in any capacity.