Opinion 17-11

 

January 26, 2017

 

Digest:         (1) It is a judge’s obligation to determine whether a lay organization for men of a particular ethnicity and religion engages in invidious discrimination. (2) A full-time judge may perform with a non-profit orchestra and other musical groups that are not business entities and accept reasonable compensation for his/her performances, subject to certain limitations. (3) A full-time judge may publish his/her own musical compositions and receive royalties and performance rights fees for them.

 

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.2(D); 100.4(A)(1)-(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); 100.4(H)(1)(c)(1)-(2); Opinions 16-179; 16-37; 16-06; 15-171; 15-162; 15-17; 10-95; 10-84; 09-192/09-231; 06-141; 06-105; 05-149; 99-145; 97-19; 96-82; 94-57; 97-19; 94-19.

 

Opinion:

 

A full-time judge who is also a musician and an adjunct professor asks several questions about the propriety of certain extra-judicial activities and income. First, the judge asks whether he/she may be a member of a lay organization for men of a particular ethnicity and religion. Second, the judge asks whether, as a part-time member of several music groups and a non-profit orchestra, he/she may perform at recitals and music festivals. Many of the participants are current or retired music teachers. Compensation typically ranges from $75 to $200 per performance, and the judge’s total income from these activities in a recent year before he/she became a full-time judge was less than $3,000. Third, the judge asks if he/she may publish his/her musical compositions and receive royalties from music publishers and performance rights fees from the American Society of Composers, Authors and Publishers (ASCAP), of which he/she is a member. The judge notes that music publishers would include “music biographical information in their websites to promote sale of the music,” but would not mention his/her judicial status.

 

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 not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Generally, a judge may engage in extra-judicial activities 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 and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

 

1. Membership in Lay Organization for Men of a Particular Ethnicity and Religion

 

With respect to the first inquiry, the Rules Governing Judicial Conduct prohibit a judge from holding “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” (22 NYCRR 100.2[D]). However, a judge may hold “membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (id.).

 

The Committee, “as a general rule, will decline to provide a definitive answer as to whether a particular organization practices invidious discrimination” (Opinion 96-82).1 This is particularly true where, as here, the inquiry provides few details and the answer is likely to require a “[far] ranging investigation into the history, background, policies and internal membership of the organization” (id.). Ultimately it is the judge’s duty to determine whether the organization practices invidious discrimination (id.). As stated in Opinion 96-82, in exercising this duty:

 

a judge should begin by ascertaining, first, whether the organization excludes persons from membership on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. If the organization does discriminate on such a basis, then a determination must be made by the judge as to whether the exclusion is invidious. If the exclusionary practice is reasonably related to a legitimate purpose (i.e., the “preservation of religious, ethnic, cultural or other values of legitimate common interest to its members”), membership is not prohibited. If, on the other hand, the discriminatory practice is one in which the policy of exclusion is arbitrary, and excludes persons or categories of persons solely on the basis of the characteristic in question, and by reason of such exclusion stigmatizes such persons or categories of persons as inferior, then the judge must conclude that the discrimination is invidious. Membership in such an organization is prohibited.

 

2. Accepting Compensation for Musical Performances

 

Although a full-time judge may not be an “active participant of any business entity” (22 NYCRR 100.4[D][3]), he/she “may receive compensation and reimbursement of expenses” for permissible extra-judicial activities, subject to certain limitations (22 NYCRR 100.4[H][1]; Opinion 09-192/09-231). For example, the source of payments must not “give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]), and compensation “shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]). A full-time judge also must not “solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof; (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, … except that a judge may receive the ordinary compensation for a lecture or for teaching a regular course of study at any college or university” (22 NYCRR 100.4[H][1][c][1]-[2]).

 

Accordingly, the Committee has advised that a full-time judge could be a member of a musicians’ union and could accept compensation as a union member for musical performances, as long as the band itself is not a business enterprise and the judge’s involvement is not publicized (see Opinion 06-141). As the Committee explained (id. [citations omitted]):

 

the musical groups in which the inquirer plays are not business entities because they are primarily rehearsal groups that play for their own personal enjoyment and seldom perform for a fee. Compensation as a member of the musicians’ union is thus ethically permissible for occasional performances of the type described in the inquiry. The judge may accept a “reasonable” pay scale set by the union on the same terms as other union members, subject to a reporting requirement if the compensation exceeds $150.

 

Likewise, in Opinion 15-17, the Committee advised that a full-time judge may play in a band that performs “eight to ten [times] yearly,” and be paid occasionally, “if the band is not a business and your role is unadvertised.”

 

Here, as described by the inquiring judge, and in view of the relatively modest compensation received by him/her, the musical groups in which he/she plays do not appear to be business entities. Therefore, he/she may accept compensation for performing with the groups (see generally Opinion 09-192/09-231; compare Opinion 94-57 [full-time judge may teach dance at a non-profit studio] with Opinion 94-19 [full-time judge may not teach dancing classes at private, for-profit performing arts studio]). Paid participation in a not-for-profit orchestra is also permissible (see generally Opinion 09-192/09-231).

 

Finally, the judge must “report the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation … at least annually” as required by the Rules (22 NYCRR 100.4[H][2]).

 

3. Publication of Musical Compositions

 

         The Committee has likewise advised that a full-time judge “may engage in extra-judicial activities … involving the expression of creative talents” and accept reasonable compensation for them, subject to certain limitations (see Opinion 09-192/09-231; 22 NYCRR 100.2[C]; 100.4[D][3]; 100.4[H][1]-[2]). For example, a full-time judge may develop and produce a musical album of original copyrighted songs written and performed by the judge (see Opinion 05-149); write and publish a work of fiction, permit the use of his/her judicial title and photograph on the book’s back cover, and personally participate in book-signing events (see Opinions 16-06; 06-105; 99-145); accept revenues and royalties from his/her published work (see Opinions 15-162; 10-84); enter an option/purchase agreement for his/her screenplay (see Opinion 16-37); and receive income from an online software tool and online commentaries created by the judge (see Opinion 10-95). The judge need not conceal his/her biographical information, including his/her identity as a judge, but promotion of such works must not exploit the judge’s judicial position (see e.g. Opinions 16-37; 06-105; 99-145).

 

Likewise, this judge may publish his/her own musical compositions and receive royalties and performance rights fees for them (see e.g. Opinions 15-162; 05-149; cf. 10-84), subject to any applicable reporting requirements (see 22 NYCRR 100.4[H][2]).

 

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       1 Of course, “[t]his does not mean that the Committee will refuse to render an opinion where it is clear and incontrovertible that the organization in question is intended to promote ‘religious, ethnic, cultural or other values of legitimate common interest to its members’” (Opinion 96-82 fn 2; see also e.g. Opinions 16-179 [“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’”]; 15-171 [“As described, the organization, though associated with one racial, ethnic, or cultural group, does not invidiously discriminate. Rather, it is devoted to public service and improvement of its members, with no suggestion of exclusionary practices”] [citations omitted]; 97-19 [“it appears that the organization is dedicated to preserving the cultural viewpoints and concerns of particular interest to Irish-Americans. There is no indication that the organization … arbitrarily exclude[es] from membership, on the basis of race, religion, sex, or national origin those individuals who would otherwise be admitted to membership”]).