Opinion 21-81
April 29, 2021
Digest: A judge who belongs to a judicial association (1) may participate in a vote on a resolution not to hold the association’s conferences in certain locations, based on local laws affecting individuals with particular sexual orientations, gender identity, or gender expression; (2) need not resign from the association merely because the resolution passes; and (3) may serve on a prison committee for the association’s local chapter, which provides support and assistance to women in prison as they prepare for their transition back into the community.
Rules: 22 NYCRR 100.2; 100.2(C); 100.2(A); 100.2(D); 100.3(B)(4)-(5); 100.3(C)(2); 100.4(A)(1); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (v); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 18-168; 18-60; 18-36; 17-179; 17-12; 16-151; 16-22; 13-34; 09-166; 09-151; 07-170; 05-140.
Opinion:
A full-time judge is a member of a national judicial association which has asked its members to vote on a proposed resolution that would prohibit the association from holding conferences in jurisdictions where protections for lesbian, gay, bisexual, transgender or queer (LGBTQ) individuals are repealed or where discriminatory LGBTQ laws are enacted.1 The judge asks if it is ethically permissible to vote on the resolution and/or to remain a member of the association if the resolution passes. The judge also asks if they may serve on the prison committee of the judicial association’s local chapter, when that committee provides support and assistance through workshops and resources to women in prison as they prepare for their transition back into the community. The judge does not preside in criminal cases.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). For example, a judge must not, “by words or conduct, manifest bias or prejudice, including but not limited to bias and prejudice based upon ... sexual orientation, gender identity [or] gender expression” (id.; see also 22 NYCRR 100.2[D]). Further, a judge “shall require staff, court officials and others subject to the judge’s direction and control to refrain from such words or conduct” (22 NYCRR 100.3[B][4]-[5]; 100.3[C][2]). A judge must conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge shall not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]) but may engage in limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]). A judge may be a member of an organization or government agency devoted to the law, the legal system or the administration of justice, provided it is unlikely that the entity will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][I]) and, if the judge is full-time, the entity is unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][3][a][ii]). Among other restrictions, a judge must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]) and must not use or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]).
The judge’s questions concerning the judicial association’s proposed resolution appear to reflect a concern that it might be seen as a politically motivated “boycott” or otherwise cast doubt on the judge’s capacity to act impartially as a judge. To the extent the proposed resolution can be seen as political or quasi-political, we believe it relates to the improvement of the law, the legal system and the administration of justice (see 22 NYCRR 100.5[A][1][iii]), as it attempts to reduce or eliminate bias based on an individual’s sexual orientation, gender identity, or gender expression, consistent with a judge’s obligations under the Rules (see 22 NYCRR 100.2[D]; 100.3[B][4]-[5]).
Indeed, we have said a judge may participate in a job fair to encourage members of the LGBTQ community to pursue careers as court officers and promote diversity in the court system (see Opinion 09-151); may join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired (see Opinion 17-179); may promote diversity by encouraging litigators to provide knowledgeable junior colleagues significant speaking or leadership roles in the courtroom (see Opinion 18-36); may meet with law school deans and various executive and legislative branch officials to express a bar association’s concern about the downward trend of minority representation and to advocate for increased diversity in the legal profession (see Opinion 07-170); may establish a judicial mentoring program to help promote diversity in the judiciary (see Opinion 16-151); and may “promote diversity by encouraging individuals from particular backgrounds to enter the legal profession” (Opinion 17-12).
While none of those activities was ethically mandated, they were all permissible efforts to improve the legal system by combating invidious discrimination, promoting unbiased treatment, and encouraging full participation by all members of society. We believe the judicial association’s proposed resolution is similarly intended to improve the law, the legal system or the administration of justice and voting on this issue will not create an appearance of impropriety or cast reasonable doubt on the judge’s ability to perform judicial duties impartially.2 Accordingly, the judge may participate in a vote on a resolution not to hold the association’s conferences in certain locations, based on local laws affecting individuals with particular sexual orientations, gender identity, or gender expression.
Just as we believe it is ethically permissible for the inquiring judge to vote on the proposed resolution, we also believe the propriety of the judge’s continued membership in the judicial association is not conditioned on passage or failure of the resolution. Thus, the judge need not resign from the association if the resolution passes.
As for the prison committee, we believe this likewise relates directly to the law, legal system and administration of justice. Judges may lobby and send letters to state officials regarding the improvement of health care for prisoners (see Opinion 09-166) and may serve on a governmental task force to help address impacts of closing a prison facility, where its members represent a broad spectrum of interests and the task force will focus on planning for an orderly transition rather than fielding complaints (see Opinions 18-168; 18-60). Therefore, the judge may serve on a prison committee for a judicial association’s local chapter, which is intended to help women in prison prepare for their transition back into the community, subject to generally applicable limitations on judicial speech and conduct.
As the judge has not provided details about the nature of their proposed involvement, we merely include a reminder about the prohibition on personally soliciting monetary or in-kind donations (see 22 NYCRR 100.4[C][3][b][I], [iv]) and also observe that additional considerations could apply if the judge wishes to be personally involved in workshops with incarcerated individuals.3
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1 We understand that some judges may be ineligible for travel reimbursement if they attend judicial conferences in such jurisdictions (see Cal Atty Gen, “Prohibition on State-Funded and State-Sponsored Travel to States with Discriminatory Laws,” https://oag.ca.gov/ab1887).
2 The judge has not indicated how they would vote on the resolution, and we make no assumption about it.
3 We have said a judge may participate in a “mentor/life coach” ministry which assists in the transition of formerly incarcerated individuals back into society, provided those individuals have already been released and “are no longer subject to supervision by any probation or parole authority” and the judge observes several strict limitations (see Opinion 05-140 [noting the judge should not work with “anyone who has previously appeared before him/her” or “anyone who may appear before his/her court”]). By contrast, we said a judge may not participate in a prison ministry program where inmates sentenced by the judge may be present in the program’s group sessions (see Opinion 16-22) or lecture at an anti-violence program where the incarcerated attendees are either awaiting disposition of an unresolved case or awaiting sentence, and could appear before the judge as criminal defendants (see Opinion 13-34).