Opinion 24-99

May 9, 2024

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 or quasi-judicial official may not participate in a voter hotline organized by that entity.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(ii); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(e); 100.6(A); Opinions 23-102; 20-145; 19-149; 19-30; 16-63; 10-19; 09-17; 96-38.

Opinion:

          The inquiring quasi-judicial official asks if he/she may participate in a “voter hotline” organized by the Lawyers’ Committee for Civil Rights Under Law, a not-for-profit, non-partisan organization which was formed to “mobilize the nation’s leading lawyers as agents of change for the Civil Rights Movement” (https://www.lawyerscommittee.org/mission [visited 6/17/2024]).  “The Lawyers’ Committee implements its mission and objectives by marshaling the pro bono resources of the bar for litigation, public policy, advocacy and other forms of service by lawyers to the cause of civil rights” (id.).  Its Election Protection voter hotline seeks to “protect, advance and defend the right to vote” by providing Americans nationwide with “comprehensive information and assistance at all stages of voting,” including help in “overcoming obstacles to their participation” (https://866ourvote.org/about/ [visited 6/17/2024]).  Thus, according to the inquirer, the hotline answers logistical problems about voting in a caller’s state using publicly available online information, and also collects information regarding where voters are having trouble, gathering data to help the Lawyers’ Committee identify and address systemic issues.

          A person who performs judicial functions within the judicial system, such as a support magistrate, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (22 NYCRR 100.6[A]; see also Opinion 09-17).  Accordingly, a support magistrate 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 independence (see 22 NYCRR 100.2[A]).  A support magistrate’s judicial functions must “take precedence” over all the support magistrate’s other activities (22 NYCRR 100.3[A]).  However, a support magistrate may engage in extra-judicial activities that are compatible with judicial office and do not cast reasonable doubt on the support magistrate’s capacity to act impartially, do not detract from the dignity of judicial office, and do not interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  A support magistrate also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).  Thus, although a support magistrate may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]), he/she may not, for example, publicly endorse a candidate for election (see 22 NYCRR 100.5[A][1][e]).  We also note that a support magistrate, like 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 100.4[C][3][a][ii]).

          We have recognized 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” (Opinion 20-145); 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 (see Opinion 19-149); a judge may publicly display a non-partisan banner stating “Your vote counts in ___ county” (see Opinion 16-63); and “[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 an involvement in partisan political activity” (Opinion 96-38).

          There are limits, however, to a judge’s participation in this area.  For example, 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” (Opinion 10-19).

          Additional caution is required where the voting related activity is organized by an entity which engages in adversarial litigation on matters of voting rights and public controversy.  Most recently, we opined that a judge may not participate in a voter registration drive 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 (see Opinion 23-102).  Our analysis of the issue corresponds to the framework we set forth in Opinion 19-30 (internal quotation marks and citations omitted):

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, in Opinion 23-102 we advised that a judge should not participate in the NAACP’s voter registration drive, where the judge would sit at the NAACP’s table, accompanied by the organization’s promotional literature, and hand out voter registration forms to the public.  We concluded that “[i]n light of the NAACP’s specific advocacy for voting rights by means of litigation, . . . 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’” (id. [quoting Opinion 19-30]).

          The same is true here.  The Lawyers’ Committee, while engaging in some activities clearly permissible for judges, also engages in some potentially controversial lobbying, advocacy, and litigation activities.  In light of the organization’s advocacy for voting rights by means of litigation, we conclude that participating in the voter hotline, including the gathering of information to assist the Lawyers’ Committee in addressing possible systemic issues, could publicly associate the support magistrate with organizational positions on matters of public controversy.  Accordingly, the support magistrate may not volunteer on the voter hotline.