Joint Opinion 89-83 and 89-84

September 12, 1989

Digest:         A judge (or a family court hearing examiner) may serve as an usher during a religious service at a house of worship, even where such service entails passing a collection basket or plate.

Rules:          22 NYCRR 100.2, 100.5(2)

Opinion:

         A judge and a family court hearing examiner in separate inquiries have propounded the identical question, whether a judicial officer may serve as an usher during services at the house of worship of the judicial officer, where the duties of the usher entail taking a collection of contributions from the congregation by passing a collection basket or plate.

         While it is clear that a judge (or a family court hearing examiner) may not solicit funds for a religious institution (22 NYCRR 1.00.5[2]), and while a technical argument could be made that the usher's function of passing a collection basket or plate during religious services relates to fundraising, the Committee concludes that this activity is permissible. The Committee believes that the legal maxim “de minimis non lex curat” - “the law does not concern itself with trifles”, applies here.

         A judge (or hearing examiner) who performs the simple ministerial act of physically passing the collection plate does not act improperly nor give the appearance of impropriety. This physical act, while it may follow a solicitation of funds made prior to the collection by a clergyman or member of the congregation, does not in itself constitute such a solicitation. So long as the judge does not participate in the actual solicitation, the mere physical act of collecting contributions is not prohibited.

[Editor's correction - The citation “100.5(2)” in this Opinion should read “100.5(b) (2)”]

         We take this position while fully recognizing that the private life of judges is not immune from application of the canons or rules of judicial ethics.

         See also Op Adv Comm on Jud Ethics 89-18, where the Committee indicated that a judge's participation as a bus boy clearing tables after a fraternal organization's fundraising supper does not constitute prohibited fundraising activity by the judge.