January 24, 2018
Digest: (1) A judge must not chair a Red Cross blood drive or solicit blood donors. (2) A judge and his/her co-judge may make a charitable contribution to their house of worship by purchasing an advertisement in the weekly bulletin identifying themselves by name and title and signing it “your local magistrates.”
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 17-55; 16-153; 16-17; 15-223; 15-171; 13-161; 13-18; 12-22; 10-206; 10–157; 09-199; 07-05; 96-46; 89-128.
A town justice asks several questions about extra-judicial activities, which we will address seriatim.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend judicial prestige to advance private interests (see 22 NYCRR 100.2[C]). Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A]). Indeed, a judge’s extra-judicial activities must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge must not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]) nor permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]).
First, the judge asks if he/she may chair a blood drive for the American Red Cross and call previous donors from a Red Cross list to see if they are interested in a timeslot to donate blood.
We have interpreted the ban on personally soliciting funds to encompass both cash and in-kind donations (see e.g. Opinion 17-55). Thus, a judge may not coordinate a scouting organization’s food drive (see Opinion 89-128); “may not distribute flyers at the local grocery store asking customers to donate food items or collect donations of either food or cash” (Opinion 10–157); and may not indirectly solicit in-kind donations by “promoting” a food or clothing drive to his/her congregation (see Opinion 16-17). In addition, a judge may not personally solicit volunteers on behalf of a not-for-profit organization, unless they are already members of the organization (see e.g. Opinion 12-22). Here, too, we conclude the judge may not chair the blood drive or make calls soliciting participation in the blood drive. Such requests, coming from a judge, could be seen be as coercive and create an appearance of impropriety.1
Second, the judge asks if he/she may, along with a co-judge who attends the same house of worship, purchase an advertisement in the weekly bulletin identifying themselves by name and title and referring to themselves as “your local magistrates.”
A judge may make charitable donations to a wide range of non-political not-for-profit entities, including religious institutions (see e.g. Opinions 15-223; 13-161), and need not conceal his/her identity as a judge in doing so. For example, a judge may sponsor a not-for-profit club “by purchasing an ad on a placemat stating ‘Best Wishes’ and denoting [his/her] name and judicial title” (Opinion 09-199 [noting the placemat includes “other sponsors - most of which are local businesses owned or operated by club members”]); may purchase an advertisement in a not-for-profit organization’s fund-raising journal, identifying him/herself by name and judicial title (see Opinion 96-46); and may permit a charity to acknowledge his/her donation by displaying a sign with the judge’s name and judicial title during the charity’s fund-raising golf outing (see Opinion 13-18). As it appears that the judge’s house of worship raises money for its operations by selling advertisements in its weekly bulletin, we see this activity as a permissible charitable donation.
Nor is the message likely to be misinterpreted as a media advertisement supporting the judges’ eventual campaigns for re-election, as the advertisements have a clear charitable purpose and do not refer to elections or voting. Significantly, a religious institution’s weekly newsletter does not have the “highly visible and semi-permanent location” of a billboard (Opinion 07-05) or the advertising section on a fence in a Little League field (Opinion 96-46).
We decline to address the judge’s remaining questions, as they relate to past conduct.
1 We note the judge does not propose to solicit blood donations from family members or his/her co-judge, but from a list of prior donors (cf. Opinions 16-153; 15-171).