June 18, 2020
Digest: On these facts, a judge may not participate in a silent “walk for justice.”
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 17-108; 17-38; 16-85; 15-26/15-44; 10-59; 04-91.
Two judges ask if they, or judges under their supervision, may participate in an informal “walk for justice” organized by a bar association in response to the death of an African-American man in police custody. Widely shared video of George Floyd’s death has sparked nationwide protests concerning racism and police misconduct. Both criminal charges and civil litigation against the officers are ongoing or reasonably foreseeable.
According to the organizers, the silent walk is open to all members of the legal community and will be entirely peaceful. There will be no speeches. Participants will walk silently on the sidewalk past governmental buildings and “take a knee” in front of a depiction of the U.S. Constitution, “as a way to both remember George Floyd” and to recognize judges and court personnel at every level “who strive every day to accomplish Dr. King’s goal of justice for everyone.” The organizers intend the walk to be not only “a time for quiet reflection or thought” but also, simultaneously, “a time for action,” as the walk will “visually demonstrate and let it be known that the legal community … is committed to remembering George Floyd [and] acknowledging the injustice of his death.” The organizers further state “George Floyd and … countless others … have been denied justice for so long and far too long.”
A judge 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]). A judge may generally engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, 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]-). However, a judge must not make any public comment on a pending or impending matter in any court within the United States or its territories (see 22 NYCRR 100.3[B]) and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]).
We have previously applied these rules to judges’ participation in certain high-profile public events. In Opinion 17-38, we considered whether judges could participate in a March for Science. Although this high-profile march was “apparently non-partisan” and “intended to recognize the importance of scientific endeavors and rational thought in society,” we said “judges must be careful to monitor the agenda and positions taken by organizers of the March,” including its “publicly reported affiliations and sponsorships in the period leading up to the event” (id.). Even if a judge concluded there was no “political party or candidate” involved, we advised that he/she “must be careful not to be ‘associated with matters that are the subject of litigation or public controversy’” and, further, ensure that his/her own participation “will not insert him/her unnecessarily into public controversy” (id.).
In Opinion 04-91, we said a Family Court judge may not attend a tree planting and candlelight vigil on behalf of crime victims in the judge’s county. The annual “Victims’ Rights: America’s Values” event was co-sponsored solely by two government agencies, and the speakers were county officials, victims, and probation personnel. As in prior years, participants would display photographs of loved ones and read a roll call of victims. Although the judge proposed to attend the event without speaking, we said (id.):
The purposes of the ceremony are admirable, but … they are heavily weighted in favor of one side that comes before the court in a setting that is understandably highly emotional. These purposes include expressing intense sympathy for victims and their families, offering them moral support and counseling, and, implicitly if not explicitly, advocating on behalf of victims’ rights. The judge’s presence among victims and counselors, while candles are lit, trees planted, victims’ names read, and victims’ pictures displayed, and while speakers are expressing support for their victims’ rights, would under the circumstances create a risk of an appearance of public identification with victims’ rights and victims.
Thus, we concluded the judge must not attend because his/her “mere presence would create an appearance of particular sympathy toward one side in court and therefore an appearance of partiality” (id.).
We reaffirmed this conclusion in 2015, noting that the candlelight vigil and the tree planting ceremony were designed as “highly emotional events to attract substantial media attention” (Opinion 15-26/15-44). Indeed, we emphasized this aspect in clarifying why and how the vigil differed from permissible domestic violence programs (id.):
Where the event’s overall context is not so one-sided and intensely emotional as to raise reasonable questions about the judge’s ability to be impartial, the Committee believes no appearance of impropriety is created by the judge’s mere attendance at such an event. Indeed, a judge who attends such events may have an opportunity to engage in one-on-one conversations with members of the public that could promote public confidence in the judiciary and dispel possible misconceptions about the judge’s role and responsibilities in cases involving claims of domestic violence [emphasis in original].
We also considered whether judges could participate silently in a grassroots organization’s local rally, march or demonstration, similar to “a rally recently held in opposition to the so-called Trump Muslim Ban” (Opinion 17-38). Here, we said judges may not attend or participate because it involved “great public controversy, which is also the subject of litigation” (id.).
Indeed, the prohibition stands even if other attendees or the general public do not know the judge’s judicial status, because “[c]oncealing one’s name and judicial status does not ordinarily render prohibited [political] conduct permissible” (Opinion 16-85). In sum, as we recognized in Opinion 17-38:
The prohibition on political activity is a heavy burden. However, it is one individuals must accept if they wish to take on the sensitive and critically important role of judges in the Unified Court System, because it is absolutely necessary to maintain an impartial judiciary both in practice and perception.
Application to the Present Inquiry
This inquiry requires us to again walk the tightrope of the need for judicial independence amid controversial public events but here, the rope is thinly stretched across the sinews of our profession, our nation’s sense of racial justice and the constitutional justice we are sworn to uphold. We recognize this silent “walk for justice” has some features that distinguish it from prior opinions. It is organized by the legal community, for the legal community, and will be silent with no speeches. However, even the silence will speak volumes about the purpose of the walk and emphasize the commitment of the participants. For example, kneeling for a moment of silence in front of the U.S. Constitution is itself a powerful but controversial symbol of a participant’s allegiance to the walk’s purpose.
Critically, the organizers’ invitation and description contain a strong emotional appeal based on Mr. Floyd’s death, a matter involving “great public controversy, which is also the subject of litigation” (Opinion 17-38). Thus, the walk, although silent, is expressly designed to communicate to the public certain views in connection with a specific incident, involving a named individual, that is the subject of litigation and intense public controversy. This is problematic under the public comment rule while civil or criminal litigation involving Mr. Floyd is pending or “reasonably foreseeable” (22 NYCRR 100.3[B]; 100.0[V] [defining “impending proceeding”]).
We strongly believe that racial justice should not be controversial. But, in this instance, the controversy surrounds not just the broad principle of racial justice but many fact-specific controversies concerning the impact of race on the criminal justice system, police tactics in interactions with African-Americans and minority communities, the legal doctrine of qualified immunity, and the need for law enforcement accountability. These and other such issues are already a part of many pending disputes in the Unified Court System. Similar issues, involving competing legal principles and disputed facts, will surely come before New York’s judges at every level of the judiciary. In the face of these controversies, judges must inspire confidence on all sides that they can be just and fair to all litigants in all proceedings. Participation in a high-profile silent “walk for justice,” organized around an intensely emotional appeal concerning a man whose death in police custody has roiled the nation in ongoing protests, could “create an appearance of particular sympathy toward one side in court” and necessarily cast doubt on the judge’s ability to be impartial (Opinion 04-91; see also Opinions 17-108 [prayer event to honor child abuse victims and survivors]; 10-59 [candlelight vigil for those affected by domestic violence]).
Thus, we conclude judges should not participate in this walk.