September 10, 2020
Digest: A judge who donates to a fund established to create and install a public monument honoring a federal judge may also solicit co-equal judicial colleagues to contribute. The judges’ names and titles may be listed with other contributors on a plaque erected with the statue. The judge must not solicit participation from non-judges or any judges over whom he/she may have supervisory or appellate authority.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(i), (iv); Opinions 18-53; 18-05; 16-153; 15-171; 14-85; 13-18; 12-106; 96-46; 92-70/92-84.
A public relations client of the judge’s spouse will dedicate land and partially underwrite the cost of a statue of a federal judge, to celebrate his/her iconic status and “significant contribution to advancing equal rights.” The statue is part of a larger initiative to promote gender parity in public art. It will be unveiled on a significant date and will remain on permanent public display in an outdoor setting near a courthouse.1 A fund has been established, and all monies contributed will go to this public art project (e.g. defraying costs of the statue’s design, manufacture and installation). The inquiring full-time judge plans to donate to the fund, and asks if his/her name may be listed, along with his/her judicial position, on a plaque to memorialize contributors. The judge further asks if he/she may solicit colleagues to contribute to the fund.
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’s extra-judicial activities must not be incompatible with judicial office and 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 the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][b][i]) and must not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][b][iv]).
1. Public Recognition of the Judge as a Donor
A judge is not prohibited from making charitable donations (see Opinion 13-18) and may permit a not-for-profit charitable organization to acknowledge the judge’s donation publicly (see Opinions 14-85 [judge’s name listed along with the names of other similarly situated donors in brochure]; 13-18 [tee sign bearing the judge’s name and judicial title during the charity’s fund-raising golf outing]). Likewise, when a judge makes a charitable donation by purchasing a suitable advertisement, he/she may include his/her name and judicial title in the message (see e.g. Opinions 18-05 [advertisement in a religious institution’s weekly bulletin]; 96-46 [congratulatory message in a charity’s fund-raising journal]; 92-70/92-84 [congratulatory message or advertisement in a fund-raising journal of a charitable or professional organization]).
Here, too, the judge may make a donation to this non-commercial public art initiative and permit his/her name and title to be listed with those of other donors on a memorial plaque erected in connection with the statue’s installation.
2. Solicitation of Other Judges
As we explained in Opinion 18-53:
Historically, the Committee “has interpreted section 100.4(C)(3)(b)(i) strictly, to forbid personal solicitation from any person” (Opinion 15-171). In Opinion 16-153, however, we advised that a trial judge whose minor child is participating in a charitable fund-raiser may personally solicit funds from family members and fellow judges not subject to his/her supervision, provided he/she does not use or invoke his/her judicial title or status in doing so.
Further, in the unusual circumstances of Opinion 12-106, we advised that a trial judge may “invite other trial judges, who are not subject to his/her supervision, to make voluntary donations to a relief fund set up for a judicial colleague who suffered devastating losses to his/her home and personal possessions” (Opinion 12-106). To the extent relevant here, we reasoned that “there [was] no risk of an appearance of coercion, as the inquiring judge proposes to solicit funds only from other judges over whom he/she has no appellate or supervisory authority” and the proposed solicitation “is not likely to create a public perception that the judiciary itself has singled out a particular educational, religious, charitable, cultural, fraternal or civic organization to benefit from internal solicitation within the court,” as the public will “correctly perceive this as a matter of collegiality or mutual support, i.e., colleagues at a workplace, motivated by kindness and caring, helping each other in a time of distress” (id.).
In effect, the Committee has, “with extreme caution,” determined that future exceptions to this ban may be allowed in other limited circumstances and that the Committee will analyze each circumstance of an inquiring judge’s proposed solicitations separately (Opinion 16-153).
After reviewing these principles, we concluded a judge may a coordinate a raffle at a magistrates’ association training program to raise money from other co-equal judges to purchase commemorative plaques for display at local court facilities (see Opinion 18-53).
Here, too, we believe the public will readily perceive it as natural, fitting, and logical that judges might wish to contribute to a public monument in honor of a high-profile federal judge’s life and work. In short, we perceive no ethical impropriety in the solicitation of funds from co-equal jurists for this purpose. The judge must not solicit or collect funds from any judges over whom he/she may have supervisory or appellate authority (if applicable), or from any non-judicial court personnel, subordinates, or other non-judges.
1 When the inquiry was first submitted, the artists were working with the federal court’s public affairs office to coordinate the judge’s involvement in the process.