March 10, 2022
Digest: A full-time judge may not serve on the executive or governing body of their church while there is a pending Child Victims Act claim against the church.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 20-55; 20-03; 19-30.
The inquiring full-time judge serves on a church council, which we understand to be the executive or governing body of the judge’s house of worship. The judge states that the church is a defendant in litigation pending in another court brought by a claimant under the Child Victims Act. It appears that the alleged abuse took place over 60 years ago at an outside activity sponsored by the church. The judge is not likely to be a witness in that litigation and is unaware of any other litigation being contemplated or any other potential victims. The judge asks if they may continue to serve on the church council.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extra-judicial activities must be compatible with judicial office and must not cast 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 generally may serve as an officer, director, trustee or non-legal advisor of a not-for-profit religious organization (see 22 NYCRR 100.4[C]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge,” and in the case of full-time judges, is unlikely to be “engaged regularly” in adversarial proceedings “in any court” (22 NYCRR 100.4[C][a][I]-[ii]).
In Opinion 20-03, we advised a judge to cease serving on the executive committee of a regional Boy Scouts Council that was likely to be engaged regularly in adversarial proceedings. Specifically, “the judge ... learned ‘there were several cases filed’ against the organization under the Child Victims Act and a fellow member of the executive committee was recently arrested and charged with sexual abuse of children” (id.). As we explained, although the executive committee and the judge “apparently have ‘no direct involvement or control’ concerning the defense or settlement of such suits, we note there are ‘several’ pending cases, and ... there is nothing to suggest these cases are ‘unlikely to become a long, drawn-out cause celebre’” (id. [citation and some internal quotation marks omitted]).
We subsequently advised that a judge may serve as a board member on a local council of the Boy Scouts of America, even though “the national organization has filed for bankruptcy protection due to numerous lawsuits alleging sexual assault or abuse,” where it appears “there are presently no claims pending against this local council or its members” (Opinion 20-55). However, we said the judge “must resign if the council becomes involved in litigation” (id.). Likewise, with respect to a judge who was serving on the board of a not-for-profit land trust, we said that once the land trust “becomes involved in a controversial contested agency proceeding affecting local conserved lands, a judge may not serve as its officer or director, but may still be a regular member provided he/she does not comment on the agency proceedings or otherwise publicly associate him/herself with the land trust’s positions on matters of public controversy” (Opinion 19-30).
Here, the judge’s own local church is specifically named as a defendant in the lawsuit, not merely the denomination or diocese, and the allegations are likely to be controversial, as they involve sexual abuse of a child several decades ago. We conclude that the inquiring judge may not serve on the executive or governing body of their church while there is a pending Child Victims Act claim against the church. Thus, on these facts, the judge should resign from the church council.