December 8, 2016
Digest: A judge may be a member of an all-female volunteer EMT service which responds to calls from women in a particular faith community who need emergency care, where the service was established to expand opportunities for women in the community and to preserve significant religious or cultural values of legitimate common interest to community members. However, a judge may not serve as director of the entity if that role requires him/her to personally engage in fund-raising and/or recruitment activities.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(D); 100.4(A)(1)-(3); 100.4(C)(3)(a); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); Opinions 15-123; 14-66; 12-142; 12-22; 10-137; 09-170; 99-178.
A full-time judge asks if he/she may serve as director of an all-female volunteer emergency medical technician (EMT) service which responds to calls from women in a particular faith community who need emergency care and provides certain limited free health care services in the community. The director “recruit[s] volunteers, schedule[s] EMT training, coordinate[s] an annual party to raise awareness of the services provided, invite[s] medical professionals and raise[s] funds.” The director, like other members, also responds to emergency calls at night or on weekend shifts.
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’s extra-judicial activities must not be incompatible with judicial office and must 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]-). A full-time judge may be a member of a non-profit educational, religious, charitable, fraternal or civic organization (see 22 NYCRR 100.4[C][a]) and may also serve as an officer, director, trustee or non-legal advisor if the organization is not likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]) or to engage in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][a][i]). However, a judge may not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]), although he/she “may assist ... in planning fund-raising” (id.). A judge also must not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]), although he/she may be listed on the organization’s “regular letterhead” in his/her capacity as an officer, director or trustee (id.). In addition, Section 100.2(D) provides:
A judge shall not hold membership in any organization that practices invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. This provision does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members.
The threshold question is whether the entity invidiously discriminates, as it is an all-female EMT service which serves women exclusively. The entity’s website explains the two-fold impetus behind its creation. First, in the local community, modesty is a highly significant cultural and religious value, which could be compromised if an individual receives medical treatment from a person of the opposite sex. Second, the community has long had an all-male volunteer EMT service that excludes qualified women from volunteering. Thus, establishment of an all-female EMT service was intended to expand volunteer opportunities for religious women in the community. In light of these facts, the Committee concludes the entity does not invidiously discriminate, as it in fact expands volunteer opportunities for women to reach parity with men, and it is primarily “dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]). Accordingly, the judge may be a member of the entity.
With respect to serving as director of the entity, by contrast, most of the described responsibilities of the office appear to involve recruitment of volunteers and fund-raising. The judge may not serve as director if it requires him/her to personally engage in such activities, which are incompatible with judicial office (see e.g. Opinions 12-22; 10-137; 09-170; 99-178; 22 NYCRR 100.4[C][b][i], [iv]). The judge may, however, as a member or otherwise, continue to schedule EMT training for existing volunteers and respond to emergency calls; may help plan the entity’s fund-raising events “behind the scenes” (see e.g. Opinion 12-142); and may personally solicit existing members of the entity to perform fund-raising and/or volunteer recruitment functions on the judge’s behalf (see e.g. Opinions 12-22; 14-66; 15-123).