Opinion 20-70

March 19, 2020

Digest:         Where a not-for-profit, non-partisan town Grange engages in significant educational initiatives to promote rural interests and an appreciation of agriculture but also engages in advocacy and lobbying with local governments concerning local laws, policies and regulations, a town judge (1) may join the entity as a regular member but (2) must not assume leadership roles in the entity or otherwise publicly associate him/herself with organizational positions on controversial issues.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(I); 100.5(A)(1); Opinions 19-137; 18-153; 17-70; 14-29; 07-155/98-31.

Opinion:

         A new town justice asks if he/she may continue as an officer of the local Grange in his/her town.¹ The Grange is a 501(C)(5) not-for-profit “non-partisan, non-sectarian, fraternal organization” organized to “educate its members and promote agricultural interests.” The judge says the entity “has partnered with community groups and schools and developed its own programs to promote rural interests and spread an appreciation of agriculture. As part of that role it works with local governments to allow backyard chickens and rework zoning laws. It has also been a catalyst and participant in contemplated governmental actions.”

         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]). As judicial duties must take precedence (see 22 NYCRR 100.3[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 as a judge; (2) detract from the dignity of judicial office; or (3) interfere with his/her judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may join a not-for-profit civic, charitable or fraternal organization (see 22 NYCRR 100.4[C][3]), but may not be an officer or director if the entity will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]), nor lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).

         As we have not previously addressed a judge’s involvement in a state or local Grange, we can only comment on the town Grange described in the inquiry. Here, the town Grange participates as “catalyst and participant” in local governmental actions, including changes in local laws or regulations.

         We’ve said a town justice “may not write the town board expressing his/her personal view that a newly enacted local law was poorly drafted and offering proposed amendments to solve the problem” (Opinion 19-137); and “it is impossible in this instance to separate the judge’s ostensibly ‘private’ opinion about the law’s merits from that of his/her ‘judicial’ opinion as the judge is tasked with presiding in matters alleging violations of the local law” (id.).

         Similarly, we said part-time attorney judges “must not represent private clients before administrative boards of the municipality in which they preside” (Opinion 18-153). As we explained (id.):

                First, given the judge’s formal status as a town officer, it could create an appearance of impropriety for the judge to represent a client in a matter where the client’s interests are apparently directly adverse to the town. Second, the representation could easily create a public impression that the judge is lending the prestige of judicial office to his/her client. Third, such representations could undermine the judge’s apparent impartiality and/or result in unnecessary disqualifications.

         In 2016, revisiting prior opinions, we said a part-time judge’s participation on a local charter revision commission “is virtually certain to involve the judge in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial” (Opinion 07-155/98-31 [internal quotations and citation omitted]). Thus, because part-time judges must “avoid improper political activity and maintain public confidence in their ability to be fair and impartial,” we said this activity is impermissible (id.).

         Finally, maintaining a leadership role in an organization “may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not” (Opinion 14-29 [judge “may not hold a leadership role in a ‘non-partisan feminist coalition’ which advocates for and influences legislative and social policy affecting women and children but may be a regular member”]). As explained in Opinion 17-70 (citations omitted):

                It is well-settled that “a judge may maintain membership in a not-for-profit organization that engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities.” The Committee has thus advised that a judge may donate to such organizations and join as a regular member, with certain limitations. However, a judge who joins such a group may not be involved in its litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in the entity....

         Pulling these threads together, we note initially the town Grange engages in many activities clearly permissible for judges, such as “partner[ing] with community groups and schools” to develop educational programs “to promote rural interests and spread an appreciation of agriculture.” However, the town Grange also engages in advocacy and lobbying with the town government concerning local laws, policies, and/or regulations. In these circumstances, we believe it may be difficult, if not impossible, to avoid the appearance of lending the prestige of judicial office to the Grange’s proposals if this judge were an officer of the Grange (see e.g. Opinions 17-70; 14-29; 22 NYCRR 100.2[C]). Further, matters involving violations of local laws – both those adopted or modified in response to the Grange’s advocacy and those left unchanged if the Grange’s suggestions are rejected – will most certainly come before the town court (cf. Opinions 19-137; 07-155/98-31).

         Thus, this town judge may be a regular member of the town Grange, but must not hold leadership roles in the entity or otherwise publicly associate him/herself with organizational positions on controversial issues. The judge thus must resign as an organization officer, whether president, secretary, treasurer, or the like.

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¹ The judge is willing to serve as president, secretary, or treasurer.