Opinion 24-121
September 12, 2024
Digest: Where participation in a bar association’s charitable sporting event requires payment of an entry fee which is not primarily intended to cover event costs but instead is deliberately set at a fund-raising level, a judge:
(1) may personally register for and participate in the event;
(2) may solicit participation and/or contributions from other judges over whom he/she has no supervisory or appellate authority;
(3) may not solicit participation or contributions, directly or indirectly, from non-judicial court personnel; but
(4) may help organize a team of colleagues who have registered for the event.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(i), (iv); Opinions 23-216; 20-132; 20-13; 14-193; 12-106; 12-40; 12-23; 94-58.
Opinion:
The inquiring full-time judge asks if it is permissible to organize a team of judicial and non-judicial colleagues to participate in a sporting event organized by a bar association to benefit local charities. The bar association raises funds by (1) soliciting sponsorships and (2) imposing an entry fee on each participant. The inquiring judge advises that the entry fee is deliberately set at a fund-raising level.[1]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]), and may not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).
We have carved out two extremely narrow exceptions to the strict prohibition on fund-raising. As relevant here, we advised that section 100.4(C)(3)(b)(i) does not apply “to a judge’s interactions with judicial colleagues over whom he/she has no appellate or supervisory authority” (Opinion 20-132). Thus, a judge may “solicit co-equal judicial colleagues to contribute” (id.).[2] Even so, a judge may not solicit or collect funds from non-judges, including non-judicial court personnel or subordinates (id.).
Although a judge “may participate in an athletic event that is organized as a charitable fund-raiser and may donate his/her personal funds to the organization or cause,” the judge must not personally solicit funds, solicit contributing sponsors, or allow the fact of the judge’s participation or his/her judicial title to be used to raise funds for the organization or the event (Opinion 12-40). Thus, while judges may organize and promote sporting and social events that charge modest fees that merely cover costs, they may not promote fund-raising events (see Opinions 20-13; 12-23).
Here, soliciting participation necessarily involves solicitation of an entry fee that is set at a fund-raising level. We have concluded that communications between co-equal judges carry little risk of an appearance of coercion and are “not likely to create a public perception that the judiciary itself has singled out a particular [interest] to benefit from internal solicitation within the court” (Opinion 12-106). But the judge may not solicit participation by non-judge court personnel or judges (if any) who may be subject to his/her supervision or appellate jurisdiction—it is the moral suasion, whether explicit or implicit, of the judge’s office to encourage participation that is impermissible (cf. Opinions 23-216 [concluding administrative judge may not organize quarterly community volunteer opportunities for judiciary and non-judicial staff]; 94-58 [advising judge may not establish public clothing drive in name of court nor permit court clerk to do so]).
Accordingly, the inquiring judge may participate in the event, may organize teams of colleagues who have already registered and chosen to participate, and may even solicit participation and contributions from other judges over whom the judge has no supervisory or appellate authority, but may not solicit participation or contributions, directly or indirectly, from others.
[1] We thus have no occasion to comment on other events where the entry fee is primarily intended to cover overhead costs such as permits, security, insurance, race bibs, t-shirts, awards/medals, timing services and other supplies, even if the fee results in some minimal surplus (cf. Opinions 20-13 [advising judge may “charge a modest fee to cover event costs” of “non-fund-raising sports race”]; 14-193 [“[T]he Committee has not previously required a dollar-for-dollar match between the cost of the event and the ticket price, and declines to do so now”]).
[2] Trial court judges who are not themselves supervising or administrative judges are generally “co-equal” with each other in this sense, except where they have appellate jurisdiction. For example, a county court judge who has jurisdiction over appeals from town and village courts in the same county should not solicit funds from those local justices.