Opinion 18-53

March 29, 2018

Digest:         A trial judge may coordinate a raffle (assuming its lawfulness) at a magistrates’ association training program to raise money from other co-equal judges over whom he/she has no supervisory authority, to purchase commemorative plaques for display at local court facilities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(I), (iv); Opinions 16-153; 15-171; 12-106; 04-119; 96-118.

Opinion:

         A town or village justice who is an officer of a magistrates’ association asks if he/she may hold a raffle to raise funds for plaques commemorating current and former town and village justices in his/her county. The raffle will take place at a magistrates’ association training program at which all attendees, except for the non-judge speaker, will be town and village justices in their region and their court clerks.

         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 “shall not personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][I]), or “use or permit the use of the prestige of judicial office for fund-raising” (22 NYCRR

100.4[C][3][b][iv]).

         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).

         To the extent the inquiring judge proposes to solicit funds from judicial colleagues over whom he/she has no supervisory or appellate authority, we believe it is permitted under prior opinions. As in Opinion 12-106 and 16-153, there is “no risk of an appearance of coercion” from the solicitation and the public will readily perceive that the judge’s interactions with co-equal judicial colleagues are clearly motivated by ordinary workplace collegiality, rather than by the judge’s judicial status or the prestige of judicial office (cf. Opinions 16-153; 15-171; 12-106).

         Therefore, provided the raffle is lawful, this trial judge may coordinate a raffle at a magistrates’ association training program and sell raffle tickets to his/her co-equal attending judicial colleagues.

         However, the judge must not solicit funds from any non-judge attendees nor allow the purchase of raffle tickets or other participation in the raffle by any non-judge attendees, including (but not limited to) court clerks, the non-judge speaker, and any other non-judge individuals who may be present at the event.

         Again, we take no position on the lawfulness of the proposed raffle, as that presents a strictly legal question (see e.g. Opinions 04-119: 96-118).