Opinion 19-149
January 30, 2020
Digest: A court attorney-referee may participate in a census education drive organized by his/her fraternity/sorority, provided he/she does so in a strictly neutral, non-partisan and informational manner.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.5(A)(1); 100.6(A); Opinions 17-70; 17-54; 16-63; 16-52; 14-35; 13-140; 12-22; 10-133; 96-38.
Opinion:
A full-time court attorney-referee asks if he/she may volunteer in a census education drive organized by his/her fraternity/sorority. The drive’s purpose is to educate community members about the importance of being counted in the census. The referee would distribute “politically neutral” literature, encourage people to participate, and help them navigate the online census process. The referee says the drive is not sponsored or co-sponsored by a political party and does not involve endorsement of any political party, candidate, or political platform.
Court attorney-referees, as quasi-judicial officials, are subject to the Rules Governing Judicial Conduct in the performance of their judicial functions and “so far as practical and appropriate” must use the rules to guide their conduct (22 NYCRR 100.6[A]). Like judges, referees must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A referee may generally speak, lecture, and teach (see 22 NYCRR 100.4[B]) but must ensure that his/her extra-judicial activities are not incompatible with his/her office and do not (1) cast reasonable doubt on his/her capacity to act impartially as a referee; (2) detract from the dignity of his/her office; or (3) interfere with the proper performance of official duties (see 22 NYCRR 100.4[A][1]-[3]). A referee also must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]; Opinion 17-70) and must not make any public comment about a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]).
Judges and quasi-judicial officials may educate the public about the the law, subject to generally applicable limitations on judicial speech and conduct, including the public comment rule and political activity restrictions (see e.g. Opinion 17-54 [“When giving a speech about the law, the legal system or the administration of justice at a court-sponsored Law Day event, a judge should not publicly criticize or attack a sitting public official, or comment on his/her remarks”]). Thus, for example, a judge may speak on the Bill of Rights at a public school teachers’ conference or address a civilian complaint review board on the law of search and seizure and arrest procedures, subject to generally applicable limitations (see Opinions 14-35; 13-140; cf. Opinion 12-22 [judge may be an original founder of a not-for-profit organization to help educate youth about their rights and responsibilities as U.S. citizens]).
A judge may also participate in non-partisan efforts to encourage community members to exercise their right to vote. For example, a judge may be a member of the League of Women Voters and accept a leadership position in the local chapter, provided that such participation does not result in an involvement in partisan political activity (see Opinion 96-38) and may publicly display on his/her office building a non-partisan banner stating “Your vote counts in ___ County” to remind citizens of their right to vote (see Opinion 16-63). Likewise, if controlling law permits voter registration forms to be made available at court facilities, it is ethically permissible to do so in a strictly neutral, non-partisan and informational manner (see Opinion 16-52). In each of these opinions, we concluded the activity conveyed no apparent partisan political message. Conversely, a judge may not serve on a panel that will discuss the principles of legislative redistricting and the governing law, “as the subjects are inherently political and highly controversial” (Opinion 10-133).
Here, the inquiring referee’s fraternity/sorority is a not-for-profit fraternal organization, with no apparent political affiliation, that seeks to educate voters on the importance of being counted in the census in a strictly neutral, non-partisan and informational manner. Although the precise methodology of the decennial census is sometimes controversial and the resulting numbers may be used for partisan political purposes, we believe that simply encouraging community members to participate in the census (i.e., to let themselves be counted) is very roughly analogous to encouraging them to vote and is not “inherently political and highly controversial” as compared with legislative redistricting (Opinion 10-133). In sum, encouraging individuals to cooperate with the “actual enumeration” called for in the U.S. Constitution does not, in and of itself, require the referee to engage in impermissible political activity. Thus, the referee may participate in the proposed census education drive as described, provided he/she does so in a strictly neutral, non-partisan and informational manner. Of course, should other potentially relevant factors arise, the referee may seek guidance on those issues.