Opinion 14-29

March 13, 2014

Digest:         A judge may not hold a leadership role in a “non-partisan feminist coalition” which advocates for and influences legislative and social policy affecting women and children but may be a regular member of the organization and may also, subject to certain limitations, attend meetings or events and make contributions to the organization.

Rules:          22 NYCRR 100.0(M); 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a); 100.4(C)(3)(b)(I); 100.5; Opinions 14-09; 13-122; 13-18; 10-132; 10-19; 09-70; 09-56; 06-50; 03-45; 98-101 (Vol. XVII); 96-46 (Vol. XIV); 94-25 (Vol. XII); 93-108 (Vol. XII); Joint Opinions 10-200/11-74; 92-70/92-84 9Vol. X).

Opinion:

         The inquiring judge asks whether he/she may participate in a “non-partisan feminist coalition” which “advocat[es] for and influenc[es] legislative and social policy affecting women and children.” Specifically, the judge would like to attend the organization’s regular meetings and annual meeting, make donations to the organization, and hold a leadership role in the organization.¹

          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 may engage in extra-judicial activities that do not (1) cast 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]). A judge must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and 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][8]). Subject to these and other limitations, a judge may be a member of a not-for-profit charitable, fraternal or civic organization (see 22 NYCRR 100.4[C][3]) and ordinarily may serve as a director of such an organization, as long as the organization is not likely to be engaged in proceedings that ordinarily would come before him/her and (if the judge is a full-time judge) the organization does not engage regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a]).

         The Committee has advised that a judge may be a member of a non-partisan citizens' committee that seeks ways to reduce violence in the community but may not participate in controversial issues, litigation, fund raising or other activities incompatible with judicial office (see Opinions 09-56; 93-108 [Vol. XII]). The Committee also has advised that a judge may be a member of Planned Parenthood and the New York Civil Liberties Union (see Opinion 98-101 [Vol. XVII]) as these organizations engage in certain activities in which judges may participate, such as promoting women’s access to reproductive health care and educating the public about the Bill of Rights (id.). The fact that these organizations also engage in lobbying, advocacy and litigation that can generate public controversies does not necessarily preclude a judge’s membership, so long as the judge avoids participating in those specific activities (id.) [noting that the judge should not be publicly associated with organizational positions on matters of public controversy]; see also Opinion 09-56).

         Because a judge’s public involvement in extra-judicial matters of substantial public controversy may raise questions about a judge’s ability to act impartially in the performance of judicial functions (see e.g. Joint Opinion 10-200/11-74; Opinion 10-19; 22 NYCRR 100.4[A][1]), the Committee has advised that a judge should not serve on the board of directors of certain potentially controversial organizations, even though he/she may be a regular member (see Opinions 09-70 [Birthright]; Opinion 09-56 [Shooters’ Committee on Political Education]). In essence, taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not.

         In the Committee’s view, the inquiring judge should not hold a leadership role in the subject organization but may be a regular member of the organization and attend the organization’s meetings. At such meetings or other events, the judge should, of course, abide by appropriate restrictions on judicial speech and conduct (see e.g. 22 NYCRR 100.3[B][6]; 100.3[B][8]; 100.5). To avoid any possible appearance of impropriety, such as the appearance that the judge is permitting others to subject him/her to improper ex parte communications, the judge should absent him/herself if any discussion of a case that is currently pending before the judge occurs (see 22 NYCRR 100.2; 100.3[B][6]; Opinion 14-09).

         The Committee has advised that a judge may contribute to any permissible not-for-profit organization (see Opinions 10-132; 06-50), including an organization that is “involved in matters of public controversy, including an involvement in litigation” (Opinion 03-45 [judge may contribute to the New York Civil Liberties Union]; see also Opinion 13-122).² Here, too, the Committee concludes that the inquiring judge may, in general, make donations to the described organization and thus may attend the organization’s fund-raising events as well as regular meetings.

         The Committee notes, however, that the inquiry reveals that certain levels of sponsorship for a particular upcoming event will cause a contributor to be “featured in [advance] publicity for the Event” and the contributor’s name may also be included in a slideshow that will play continuously at the event’s opening session, before the keynote address.

         The judge must avoid even the appearance that he/she is personally participating in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]). Therefore, if the event is a fund-raiser, the judge may not permit his/her name to be used in any advance publicity, including invitations, announcements, or promotional materials distributed prior to the event.

         However, the Committee previously has advised that a judge’s donation may be acknowledged during a charitable organization’s fund raising event (see Opinions 13-18 [judge may make charitable donation and permit charity to acknowledge donation by displaying sign bearing judge’s name and judicial title during charity’s fund-raising golf outing]; 96-46 [Vol. XIV] [judge may contribute to charity and place congratulatory ads or messages in journals]; 94-25 [Vol. XII] [judge may place congratulatory notice in journal published in conjunction with fund-raising event of charitable organization]; Joint Opinion 92-70/92-84 [Vol. X] [judge may place congratulatory message or advertisement in fund raising journal]). The Committee noted that the judge’s ad is simply a contribution to the charity and does not involve the solicitation of funds.

         Therefore, the inquiring judge may permit the organization to include his/her name in a slideshow that will play continuously at the fund raising event opening session, before the keynote address.

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     ¹Although the inquiring judge is apparently within his/her window period, the judge has not asked any questions specifically relating to his/her election campaign, and the Committee therefore does not address such issues. Similarly, the Committee cannot address the vague and general question of whether the judge may participate in the organization “in other ways.”

     ²A judge may not, however, make a contribution to a political organization or candidate (see Opinion 06-50; 22 NYCRR 100.5).