Opinion: 96-76

September 5, 1996

Digest:         A judge may not serve as a member of an ecclesiastical court.

Rules:          22 NYCRR 100.4 (F)

Opinion:

         A full-time judge inquires whether he/she may serve as a member of an ecclesiastical court which hears the presentment of charges against members of the clergy who are alleged to have violated church canons. The jurisdiction of the court does not overlap or duplicate that of the state courts and members of the clergy have vowed not to present any issues which are within the scope of the ecclesiastical court’s jurisdiction to any other forum. If a clergy person is found to have violated a church canon, he/she may have their role or standing in the church modified by the court.

         At issue is the applicability of section 100.4 (F) of the Rules Governing Judicial Conduct which provides that: “A full-time judge shall not act as a arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.”

         Opinion 92-123 addresses this question. It states in relevant part: “Serving as a hearing officer in a church-related disciplinary proceeding is a form of private judging and is so close to being an arbitrator, that it is prohibited by section 100.5 (e) [now 100.4(F)] of the Rules, even where it occurs outside the state.”

         As the role of the members of the ecclesiastical court is to perform judicial functions in a private setting which are not authorized by Part 100 of the Rules Governing Judicial Conduct service on such court is impermissible.