Opinion 24-101

June 20, 2024

Digest:  A judge may attend the NAACP’s national convention as a member of the organization but (a) may not engage in any partisan political activity, (b) may not serve as a delegate or voting member or otherwise assume any leadership role, and (c) must not associate him/herself with organizational positions on matters of public controversy.

Rules:   22 NYCRR 100.0(V); 100.1; 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1); 100.5(A)(1); Opinions 23-118; 23-102; 19-30.

Opinion:

          The inquiring full-time judge is a member of the NAACP and would like to attend the organization’s national convention.  The judge first asks if he/she may attend simply as a regular member, rather than as a delegate or in any leadership capacity.  If that is permissible, the judge next asks if he/she may “participate as an alternate delegate or delegate representing my branch at the [NAACP national] convention.”  According to the convention website:

“The NAACP National Convention is an empowering and immersive experience held each year to celebrate our community’s collective power. The Convention attracts innovative change-makers, thought-leaders, entrepreneurs, scholars, entertainers, influencers, and creatives to network and exchange ideas.

This year’s theme, All In, reaffirms our commitment to using our collective ingenuity, creativity, and strength to continue the fight for civil rights and social justice.”

          A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and avoid even the appearance of impropriety (see 22 NYCRR 100.2).  Further, a judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, for example, a judge’s extra-judicial activities must not “cast reasonable doubt on the judge’s capacity to act impartially” (22 NYCRR 100.4[A][1]) and a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).  A judge also must not make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B][8]), including “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).

Because the NAACP 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 may be a member of the NAACP but may not serve in a leadership role (see Opinion 23-118).  As we explained in Opinion 23-102 (quoting Opinion 19-30), the following framework applies to a judge’s proposed involvement in the NAACP:

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.

          While we ultimately advised that a judge may not participate in a voter registration drive organized by the NAACP (see Opinion 23-102), the broader principle is that a judge who would like to participate in specific NAACP events and programs should evaluate them using the guidelines above to determine if their proposed participation is permissible.

          Here, we see no impropriety in the judge merely attending the NAACP’s national convention as a member of the organization and nothing more, subject to the guidelines referenced above.  Thus, in response to the judge’s first question, the judge may attend, but may not engage in any partisan political activity, and must avoid publicly associating him/herself with organizational positions on matters of public controversy.  The answer to the judge’s second question is that he/she may not assume any leadership role, including as a delegate or as a voting member.