Opinion 23-102
September 7, 2023
Please Note: Opinion 24-147 modifies the present opinion in part. Although it reaffirms that “a judge may not sit at a voter registration table accompanied by the NAACP’s banners or promotional materials,” it nonetheless advises that a judge “may participate in a voter registration drive organized by the NAACP, provided that he/she does so without reference to the NAACP, including banners, promotional literature or other public association with the organization.”
Digest: Where a not-for-profit entity engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities, a judge may not participate in a voter registration drive organized by that entity.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(C)(3)(a)(ii); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(e); Opinions 23-06; 20-145; 19-30; 15-77; 14-117; 90-129.
Opinion:
The inquiring full-time judge is a member of a local chapter of the NAACP, a non-partisan, not-for-profit civil rights organization. According to its website, the NAACP pursues its mission “to ensure equitable treatment and opportunities” in matters such as “voting rights” through various means, including litigation.[1] At an upcoming free local community event, the chapter will set up a table to encourage people to exercise their right to vote. There will be “signs posted that state ‘Vote’ alongside images of civil rights heroes” and NAACP members will distribute voter registration forms, non-partisan civics information regarding voting, and literature about the NAACP. The judge asks if it is ethically permissible to participate in this event by sitting at the NAACP’s table and personally handing out voter registration forms and non-partisan information to the public. The judge says there will be absolutely no “fliers or information regarding candidates.”
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 independence (see 22 NYCRR 100.2[A]). A judge’s judicial duties must “take precedence” over all the judge’s other activities (22 NYCRR 100.3[A]). However, a judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Thus, although a judge may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]), the judge may not, for example, publicly endorse a candidate for election (see 22 NYCRR 100.5[A][1][e]). We also note that a full-time judge may not serve as an officer, director, trustee or non-legal advisor of an entity that engages “regularly in adversary proceedings in any court” (22 NYCRR 100.3[C][3][a][ii]).
Preliminarily, we recognize that a judge may engage in some non-partisan efforts to encourage members of the public to exercise their right to vote. For example, we have advised that a judge may drive members of a religious congregation in another state to their local polling sites, provided this effort is completely independent of any political organization or candidate and the judge avoids impermissible political activity (see Opinion 20-145). As described in Opinion 20-145 (citations and footnote omitted):
We have said a court attorney-referee may participate in a census education drive organized by a not-for-profit fraternal organization, provided he/she acts in a strictly neutral, non-partisan and informational manner; a judge may publicly display a non-partisan banner stating “Your vote counts in ____ county”; 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 any involvement in partisan political activity; and if controlling law permits voter registration forms to be made available at court facilities, it is permissible to do so in a strictly neutral, non-partisan and informational manner. However, a judge may not participate as an election observer in a local election, where he/she would be “actively assisting a governmental entity to enforce the fairness of the voting process by identifying eligible voters, challenging voters and ballots for good cause, and reporting apparent irregularities to the Board’s agent.”
These precedents are readily distinguishable from the present inquiry. A key factor is that this voter registration drive is organized by the NAACP, a prominent civil rights advocacy organization which pursues certain aspects of its mission -– including furtherance of voting rights -- through adversarial litigation. In Opinion 19-30 (citations omitted), we defined a framework for a judge to evaluate their proposed involvement in this type of organization’s activities:
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.
Applying these principles, we said a judge may maintain regular membership in the National Rifle Association, Planned Parenthood, or the New York Civil Liberties Union (NYCLU), although the judge “must, of course, avoid impermissible political activity and may not assume a leadership role” in the organization (Opinion 23-06). We conclude that the NAACP – much like the NYCLU – “may be involved in some impermissibly controversial issues, but also has substantial activities in which a judge may ethically participate” (id.). Clearly, the standards of Opinion 23-06 permit the judge to maintain regular membership in the NAACP and make charitable contributions to the organization (see e.g. Opinions 14-117 [NAACP]; 15-77 [Planned Parenthood’s non-political arm]).[2]
We reach a different conclusion with respect to the judge’s proposed participation in the NAACP’s voter registration drive, where the judge would sit at the NAACP’s table, accompanied by the NAACP’s promotional literature and posters of civil rights heroes, and hand out voter registration forms to the public. In light of the NAACP’s specific advocacy for voting rights by means of litigation, we readily conclude that participating prominently and publicly in the NAACP’s voter registration drive could “publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not” (Opinion 19-30).
Accordingly, the judge should not participate.
[1] “Through affirmative litigation, we aim to further our mission to ensure equitable treatment and opportunities when it comes to voting rights, education, economic empowerment, criminal justice, and health, including environmental justice. We initiate lawsuits and join as plaintiffs in state and federal cases” (https://naacp.org/issues/advocacy-litigation).
[2] We had advised, under a prior version of the rules, that a judge “may serve as a member of the judicial honorary board of a branch of the NAACP” (Opinion 90-129). We leave this advice undisturbed for now, as we do not have any facts before us which would allow us to reach a conclusion about whether membership on a NAACP judicial honorary board might impermissibly “associate the judge organizational positions on matters of public controversy” (Opinion 19-30).