Opinion 23-114

October 26, 2023

Digest:  (1) A full-time judge may not serve as an officer or director of a not-for-profit community group organized to oppose a municipality’s proposed changes to a public park by litigation and other means, and may not engage in community outreach or fund-raising on behalf of the group.  However, the judge may make charitable donations to the group and may engage in certain public advocacy activities on the judge’s own behalf where the judge has a clear and direct personal interest at stake.
(2) A non-judge candidate for judicial office may continue to engage in such activities, provided they are kept separate from the candidate’s judicial campaign.

Rules:   22 NYCRR 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i)-(ii), (iv); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(ii); Opinions 23-61; 23-52; 22-15(C); 22-15(B); 20-57; 19-30; 18-151; 16-179; 15-77; 15-01; 14-146; 14-132; 14-117; 12-142; 02-80; 97-36; 92-21. 

Opinion:

          The inquiring non-judge is running unopposed for election to full-time judicial office.  The inquirer has been actively involved in a not-for-profit community group that was formed by neighbors and park users in response to the municipality’s proposal to redesign a park that is very close to the inquirer’s home.  The inquirer expects legal challenges to be initiated against the municipality soon.  We discuss the inquirer’s various questions in turn below, first addressing their obligations on assuming judicial office, and then addressing their obligations during the current period as a non-judge candidate for elective judicial office.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s impartiality; 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 must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). 

1.  Public Stance on Proposed Renovation

The inquirer first asks if, as a full-time judge, they may “openly state [their] personal stance on the proposed renovation as a resident of the community that is directly and negatively impacted by the plan.” 

We have advised that a judge may engage in certain public advocacy activities where the judge “has a cognizable personal interest at stake, often one affecting the judge’s home” (Opinion 23-61).  For example, a judge may voice their opinion at a planning board meeting about a proposal to rezone nearby commercial property “insofar as it affects the judge’s property” (Opinion 92-21) or write to a governmental authority about a proposed traffic light near the judge’s home (see Opinion 97-36).  In one instance, where a planned discharge into a waterway “will be upstream from the waterfront town where the judge resides,” we found the judge “has a clear and direct personal interest at stake” sufficient for the judge to speak publicly on the matter (Opinion 23-61).  However, we emphasized that “the judge may advocate only on the judge’s own behalf as a private citizen whose personal interests will be directly affected” (id.).

Accordingly, after assuming judicial office, the inquirer may publicly state their personal position on the proposed changes to the park as a resident who is directly impacted by the proposed plan but may not advocate on anyone else’s behalf.  In doing so, the inquirer should not refer to their judicial status or use judicial stationery (see Opinions 23-61; 97-36). 

2.  Community Outreach

          The inquirer asks if it is ethically permissible, after assuming full-time judicial office, to pursue various community outreach efforts with the local advocacy group “to advise people” about the municipality’s plan and the “impending litigation.”  These outreach efforts would include “canvassing and speaking to” park users and “helping to plan community events” in opposition to the changes.

          Where a not-for-profit organization “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have advised that 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” (Opinion 19-30; 23-61).  Moreover, a judge must not publicly comment on any “pending or impending proceeding” in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]; 100.0[V] [an “impending” proceeding is one that is “reasonably foreseeable but has not yet been commenced”]).  Thus, we advised that a judge may not spearhead a local not-for-profit organization’s efforts to protest a planned discharge of substances into a local waterway, even though the judge may engage in certain advocacy activities on behalf of the judge’s own personal interests (see Opinion 23-61).

Here, the community group advocates for an issue that appears to be a matter of substantial local controversy and, as stated by the inquirer, is the subject of reasonably foreseeable litigation on which the judge is prohibited from commenting. Thus, the inquirer may not, as a full-time judge, engage in the proposed community outreach. 

          To the extent these community outreach activities are intended to recruit members or volunteers for the organization, we note for completeness that judges are also prohibited from engaging in such solicitations (see e.g. Opinions 02-80 [judge may not provide a statement for a non-profit’s recruitment brochure]; 16-179 [judge must not serve as director of non-profit “if that role requires him/her to personally engage in … recruitment activities”]; 18-151 [judge may not chair the membership committee of a non-profit]; 22 NYCRR 100.4[C][3][b][iv]). 

3.  Service on Board of Directors

The inquirer asks if it is ethically permissible, after assuming full-time judicial office, to serve on the board of directors or as a non-legal advisor once the community group is formally incorporated as a not-for-profit.

          A judge generally may serve as an officer, director, trustee or non-legal advisor of a not-for-profit civic organization (see 22 NYCRR 100.4[C][3]), provided the entity is unlikely to be engaged in “proceedings that ordinarily would come before the judge,” and in the case of full-time judges, is unlikely to be “engaged regularly” in adversarial proceedings “in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).  Moreover, as noted above, where an organization “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” a judge also may not assume a leadership role in the organization for that independent reason as well (Opinions 19-30; 23-61).

          Accordingly, we conclude the inquirer, as a full-time judge, may not serve as an officer, director, or non-legal advisor of this community group or otherwise undertake a leadership role in the organization.  However, the judge may remain a regular member, provided he/she does not comment on the pending or impending litigation or otherwise publicly associate him/herself with the group’s position on matters of public controversy (see Opinions 19-30; 22-15[C]; 23-61).

4.  Personal Donations

The inquirer asks if it is ethically permissible, after assuming full-time judicial office, to donate money to the community group.

In general, a judge may make donations to a wide range of non-political not-for-profit civic and charitable organizations (see e.g. Opinion 23-52).  The fact that the organization may be involved in some activities that the judge may not be permitted to engage in, does not necessarily preclude the judge from making a charitable donation (see e.g. Opinions 15-77; 14-117).  However, a judge must not contribute to a political organization or make other political contributions.  For example, we have advised that a judge may contribute to the non-political charitable and/or educational entities of Planned Parenthood, but not to its political action committee or other political arm (see Opinion 15-77). 

On the facts presented here, we conclude the judge may make general charitable contributions to the local community group, provided the judge’s contributions are not earmarked or otherwise dedicated to legal fees or litigation costs (cf. 22 NYCRR 100.4[A][1] [judge’s extra-judicial activities must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge”]). 

5.  Fund-Raising

The inquirer asks if it is ethically permissible, after assuming full-time judicial office, to participate in the group’s fund-raising efforts.

A judge may assist a not-for-profit organization in “planning fund-raising,” but may not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).  This limitation applies very broadly.  Indeed, we have advised that a judge should not take an acting part in a theatrical performance that was a fund-raising event since their public participation “may subtly suggest a solicitation by the judge” (Opinion 20-57 [citation omitted]).

          Therefore, as a full-time judge, the inquirer may assist the community group in planning fund-raising efforts, but must not personally participate in the solicitation of funds.  Among other restrictions, we note that the judge must not post, forward or distribute fund-raising solicitations or invitations to fund-raisers, even if the judge would be sharing a link rather than personally collecting the funds (see e.g. Opinions 14-132; 22-15[B]).  If the group holds fund-raising events, the judge must not be “a speaker or the guest of honor” (22 NYCRR 100.4[C][3][b][ii]) and must not participate in a “substantial and prominent manner” at the event (Opinion 12-142).

6.  Activities as a Non-Judge Candidate

In the interim, the inquirer asks if it is ethically permissible to engage in all the above activities before taking the bench as a full-time judge, while the inquirer is a judicial candidate and/or a judge-elect.

Although most provisions of the Rules Governing Judicial Conduct do not apply to a non-judge before they take and file their oath of office (see Opinion 15-01), Section 100.5 applies to all judicial candidates.  Thus, for example, a non-judge candidate must act in a manner consistent with the impartiality, integrity, and independence of the judiciary during their campaign (see 22 NYCRR 100.5[A][4][a]). 

Thus, the inquirer, as a non-judge, may generally engage in the above activities until January 1st, provided they keep those activities separate from their judicial campaign (see e.g. Opinion 14-146 [judicial candidate may not permit their campaign committee to solicit or accept items for donation to a local charity]). 

          Still, as a judicial candidate and/or a judge-elect, the inquirer should refrain from making comments about pending or impending litigation that might undermine public confidence in their impartiality (see 22 NYCRR 100.5[A][4][a]) and must not make any commitments or pledges regarding the local park controversy that are “inconsistent with the impartial performance of the adjudicative duties of the office” (22 NYCRR 100.5[A][4][d][i]-[ii]).