Opinion 09-70

March 12, 2009

Digest:         A support magistrate should not serve on the board of a local chapter of Birthright, an organization that is devoted to reducing the incidence of abortions by providing pregnant women with free and confidential assistance in finding abortion alternatives, but may join the organization as a regular member.

Rules:         22 NYCRR 100.2; 100.4(A)(1); 100.4(C)(3)(a); 100.6(A); Opinions; 07-156; 03-80; 01-65 (Vol. XX); 99-74 (Vol. XVIII); 98-101 (Vol. XVII); 98-74 (Vol. XVII); 97-54 (Vol. XV); 97-03 (Vol. XV).

Opinion:

         A support magistrate assigned to Family Court has been asked to serve on the board of a local chapter of Birthright, a not-for-profit organization that is devoted to providing free and confidential assistance to women who are "dealing with an unexpected pregnancy." According to information the support magistrate submitted with his/her inquiry, one of the organization's primary objectives is to provide such women with alternatives to abortion. The organization states that it "is not connected to any church, political group, or lobbying network." The support magistrate asks whether he/she may join the organization's board of directors.

         This Committee has previously held that support magistrates, as persons who perform judicial functions within the court system, must comply with the same restrictions as judges with respect to their governmental, civic and charitable activities (see 22 NYCRR 100.6[A]; Opinions 03-80; 97-03 [Vol. XV]; cf. Opinion 07-156 [judicial hearing officer]). A support magistrate thus must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must conduct all of his/her activities in a manner that does not cast reasonable doubt on his/her ability to act impartially as a support magistrate (see 22 NYCRR 100.4[A][1]). A support magistrate may be a member of a charitable or civic organization not conducted for profit 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 does not engage regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a]).

         However, a support magistrate’s public involvement in matters of "substantial public controversy" may cast reasonable doubt on his/her ability to act impartially in the performance of judicial functions (see 22 NYCRR 100.4[A][1]; Opinions 01-65 [judge should not serve on regional coalition of black elected officials that will "prioritize issues that elected and appointed government officials should address"]; 99-74 [Vol. XVIII] [judge should not serve on a Water Advisory Committee, where the Committee's recommendations may become a subject of controversy]; 98-101 [Vol. XVII] [judge may be a member of Planned Parenthood and the New York Civil Liberties Union, provided that such membership does not publicly associate the judge with organizational positions on matters of public controversy]).

         Abortion is a longstanding controversial public issue, and therefore a support magistrate should not join the board of directors of an organization such as Birthright that is publicly devoted to one side of the controversy (see Opinion 98-74 [Vol. XVII] [judge may not serve on the board of directors of a local Right to Life advocacy organization]).

         However, the Committee sees no ethical reason why a support magistrate cannot become a regular member of an organization, the primary mission of which is to offer confidential services to pregnant women when it appears that the organization does not engage in litigation, political advocacy or lobbying regarding abortion (see 22 NYCRR 100.4[C][3][a]; Opinion 98-101, supra; compare Opinions 97-54 [Vol. XV] [judge may not be a member of the Coalition for Legal Abortion, in light of its political lobbying functions]).