Opinion 20-128
September 10, 2020
Digest: On these facts, it is the obligation of the judge who wishes to be a member or leader in a not-for-profit entity to determine if it invidiously discriminates, engages in partisan political activity, or will insert the judge unnecessarily into public controversy.
Rules: 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.2(D); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(b); Opinions 19-149; 19-30; 18-72; 17-70; 17-38; 15-210/09-56; 14-117; 14-95; 12-120; 11-137; 03-38; 96-82.
Opinion:
A full-time judge asks if he/she may be a member and/or serve on the executive board of directors of a local unincorporated not-for-profit organization (the “Organization”) with the stated purpose:
to advocate for demonstrable change in issues facing the African-American community of ______ in areas, including but not limited to: equity in education resources, both public and private; youth enrichment through membership and employment opportunities; enhanced services for senior residents; and full enfranchisement. [The Organization] will sponsor local and regional events that provide an opportunity to support the mission of the organization. [The Organization] will collaborate with other entities in an effort to share resources and ideas to achieve goals of mutual benefit.
Like many other not-for-profit entities, the Organization “[r]aises funds for costs of programs through donations.” Among other specific programs, the Organization:
• “Uses social media including twitter and Instagram to advocate for the ‘Black Lives Matter’ movement;”
• Sponsors “programs or events ... that promote US Census participation by African-Americans;” and
• Sponsors “programs or events ... that promote the need to expand literacy and technology resources in the [local] community.”
Finally, as the Organization “[o]nly allows women to be general members with voting authority,” the judge specifically asks if he/she may participate “as a general member with voting authority” or, alternatively, participate “as an associate member, alongside men, without voting authority.”
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 comport with his/her office and not (1) cast reasonable doubt on his/her duty to act impartially; (2) detract from the dignity of the office; or (3) interfere with his/her judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Thus, a judge must not hold membership in “an organization that practices invidious discrimination based on age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability or marital status,” although he/she may hold membership in an organization “dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]). However, a full-time judge may generally be a member of a non-profit educational, religious, charitable, fraternal or civic organization (see 22 NYCRR 100.4[C][3][a]) and may also serve as an officer, director, trustee or non-legal advisor if the organization is not likely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]) or to engage in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]). A judge may not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]). A judge also must not “directly or indirectly engage in any political activity” except as expressly permitted (22 NYCRR 100.5[A][1]). For example, he/she may not be a member of a “political organization” (22 NYCRR 100.0[M]), other than enrollment and membership in a political party (see 22 NYCRR 100.5[A][1][b]).
Invidious Discrimination
As described, the Organization “only allows women to be general members with voting authority,” relegating men to the position of “associate member, ... without voting authority.” This raises an initial question under Section 100.2(D):
A judge shall not hold membership in any organization that practices invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability or marital status. This provision does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interests to its members.
We believe this judge must therefore ascertain whether the Organization excludes or limits persons from membership on the basis of sex or any of the other listed classes. If the Organization does discriminate on such a basis, then the judge must further determine “whether the exclusion is invidious” or subject to an exception under the Rules (Opinion 96-82). As described in Opinion 96-82:
If the exclusionary practice is reasonably related to a legitimate purpose (i.e., the “preservation of religious, ethnic, cultural or other values of legitimate common interest to its members”), membership is not prohibited. If, on the other hand, the discriminatory practice is one in which the policy of exclusion is arbitrary, and excludes persons or categories of persons solely on the basis of the characteristic in question, and by reason of such exclusion stigmatizes such persons or categories of persons as inferior, then the judge must conclude that the discrimination is invidious. Membership in such an organization is prohibited.
It is the judge who is in the position to assess the relevant factors and decide whether the Organization practices invidious discrimination. If so, the judge must not join the Organization in any capacity and need not reach the remaining questions.
Political Activity and Involvement in Matters of Substantial Local Controversy
If the judge concludes the Organization does not practice invidious discrimination, the judge must proceed to assess additional issues. Specifically, as the Organization “uses social media including twitter and Instagram to advocate for the ‘Black Lives Matter’ movement” and seeks to “advocate for demonstrable change” in the community, certain limitations on a judge’s political activity and/or involvement in matters of substantial local controversy may apply.
Preliminarily, if the entity is a “political organization” under Section 100.0(M), the judge may not be a member (see 22 NYCRR 100.5[A][1][b]). The Rules define a “political organization” as “a political party, political club or other group, the principal purpose of which is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]). Thus, a judge may not join an entity primarily engaged in substantial political activity, including support for specific candidates (see Opinion 14-95 [organization that “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government”]). For example, we found Indivisible, Emily’s List, MoveOn.Org, and J Street are “political organizations” under the Rules (see e.g. Opinions 18-72 [“Because a principal purpose of Indivisible is to further the election of candidates to public office,” it “qualifies as a ‘political organization’”]; 14-117 [concluding that the purpose “to ‘unleash progressive people power by encouraging and supporting MoveOn members and other progressives to step up as the leaders of their own campaigns for social change’” works essentially “to support certain candidates based upon their views of certain political issues”]).
Assuming the judge concludes the Organization is not a “political organization” under the Rules, we have said involvement in matters of “substantial public controversy” may cast reasonable doubt on a judge’s ability to be impartial in performing judicial functions (see Opinion 17-38). In Opinion 17-38, we advised a judge not to participate in a high-profile “March for Science” unless he/she determines, among other considerations, that “the judge’s participation will not insert him/her unnecessarily into public controversy.”
Further, as described in Opinion 19-30 (citations omitted):
if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization.” In essence, “taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not.” Nonetheless, a judge may be a regular member of such organizations, if they are not “political organizations” under the Rules.
Thus, the judge must also review the Organization’s anticipated and actual activities to determine whether his/her proposed participation will involve the judge directly or indirectly in impermissible political activity, and/or insert him/her unnecessarily into public controversy (see e.g. Opinion 17-70).
Such a determination, however, is not one we can readily make for the judge, as we are neither an adjudicative nor an investigative body. Our opinions “are predicated upon and confined to the representations provided by the judge in his or her inquiry” (Opinion 96-82). Thus, “it is the judge who is in the position to assess the relevant factors and reach a conclusion” as to whether the Organization practices invidious discrimination, engages in partisan political activity and/or will insert the judge unnecessarily into public controversy (id.).
Conclusion
If the judge concludes the Organization does not invidiously discriminate and is not a “political organization” under the Rules, pursuant to the criteria set forth above, the judge may join as a regular member.
If the Organization engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy or litigation activities, the judge may only be a regular member and must not serve on the executive board or take other leadership positions within the organization (see e.g. Opinions 19-30; 17-70; 15-210/09-56).1
Assuming the judge concludes participation is permissible at a particular level, considering all the factors above, the usual limitations on judicial speech and conduct will apply. For example, we said a judge may assist in planning fund-raising and managing or investing raised funds for a not-for-profit civic or charitable organization, provided the judge is not personally involved soliciting funds and does not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see e.g. Opinion 11-137; 22 NYCRR 100.4[C][3][b][I], [iv]). Thus, while a judge may generally participate in events to promote literacy (see e.g. Opinion 12-120 [judge may set up a table with a children’s book theme at a non-fund-raising event]), we note the judge may not advocate for additional funding “to expand literacy and technology resources” (cf. Opinion 03-38 [judge who is a member of the Board of Trustees of a library should not write a letter to a newspaper or make any other public statement in support of a ballot proposition that would secure funding for the library]). As for census education activities unaffiliated with any political organization or candidate, we have said a judge may participate “in a strictly neutral, non-partisan and informational manner” (Opinion 19-149).
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1 On the facts presented, we assume the Organization is unlikely to be involved in litigation in any court. If this assumption proves incorrect, the judge should review Sections 100.4(C)(3)(a)(I)-(ii) and seek further guidance as needed.