Digest: A judge (1) should not be a member of the National Women's Political Caucus; (2) may be a member of the League of Women Voters; (3) may be a member of Planned Parenthood and the New York Civil Liberties Union, provided that such membership does not involve the judge in organizational litigation or in public association with organizational positions on matters of public controversy.
 

Rule:  22 NYCRR 100.4(A)(1), (3);
           100.4(C)(3)(a)(ii), (b)(i), (iv); 100.5
           Opinions 96-38 (Vol. XIV), 93-99 (Vol. XI).
 
 

Opinion:

            A full-time judge seeks the opinion of the Committee concerning membership and participation in several non-profit organizations. As stated by the judge:
 

Since becoming a Judge in January 1997, several questions have arisen regarding the permissibility of my maintaining a membership in certain organizations and of my participating in certain events. To date, I have erred on the side of caution by not maintaining my memberships or participating in those events but, for future reference, I would like to clarify the applicable parameters.

The organizations regarding which I had questions concerning my ability to maintain a membership include the following: League of Women Voters, New York Civil Liberties Union, Planned Parenthood and National Women's Political Caucus (non-partisan).

In addition, I was recently asked to join the Honorary Committee for an awards ceremony sponsored by the Region Chapter of the New York Civil Liberties Union (a copy of the letter is enclosed). Is it permissible?

            Pursuant to section 100.4(C)(3) of the Rules Governing Judicial Conduct, a judge may be a member "of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit" subject to certain restrictions and limitations. These restrictions and limitations include those activities that "cast reasonable doubt on the judge's capacity to act impartially as a judge" (22 NYCRR 100.4[A][1], or "interfere with the proper performance of judicial duties . . ." (22 NYCRR 100.4[A][3]), or involve the judge "in the solicitation of funds or other fund-raising activities" (22 NYCRR 100.4[C][3][b][i]), including the "use of the prestige of judicial office for fund-raising in membership solicitation . . ." 22 NYCRR 100.4(C)(3)(b)(iv). Further, a judge may not engage in prohibited political activity as specified in section 100.5 of the Rules.

            Given this backdrop, it appears to the Committee that the differences among the organizations call for different responses. For example, the League of Women Voters, as noted by the Committee in Opinion 96-38 (Vol. XIV) is a "non-partisan organization that facilitates the dissemination to the electorate of views of candidate for elective office but does not itself take positions concerning political issues or candidates. Based upon that understanding, the Committee sees no ethical objection to the inquirer's participation." Opinion 96-38 (Vol. XIV). On the other hand, the Committee noted in Opinion 93-99 (Vol. XI), that the National Women's Political Caucus "identifies viable candidates for judicial office and assists them in getting elected through financial contributions, campaign volunteers and technical assistance." Membership in such an organization, in our opinion, would constitute impermissible political conduct and thus violate section 100.5 of the Rules Governing Judicial Conduct.

            Planned Parenthood, Inc. and the New York Civil Liberties Union raise somewhat different concerns because both groups, although engaged in a variety of activities that a judge could readily be associated with (e.g. education about the Bill of Rights, women's health counseling, etc.), are also involved in matters of great public controversy, including an involvement in litigation, either as direct participants or as amici.⁽¹⁾ Taking such concerns into account, the Committee concludes that while there is no per se prohibition against membership in either organization, a judge should take care that such membership does not involve the judge in being associated with matters that are the subject of litigation or public controversy. Further, should either organization appear in the judge's court, there should be recusal, subject to remittal.

            The dangers posed by participation in and public association with certain activities engaged in by the organizations is illustrated by the inquiry before the Committee. The Annual Awards Event of the chapter of the New York Civil Liberties Union, in which the judge has been asked to serve as a member of the Honorary Committee, will bestow awards on a legislator who "has remained steadfast in opposing attacks on reproductive freedom" and on the party who initiated a major separation of church and state case that was decided by the United States Supreme Court. Thus, the judge, in effect, is being asked to identify herself with political and legal positions represented by the awards. In our opinion, such public and open identification with and espousal of a particular point of view regarding such issues would "cast reasonable doubt on the judge's capacity to act impartially as a judge" (22 NYCRR 100.4[A][1]), and is "incompatible with judicial office." 22 NYCRR 100.4(A)(3). The judge, therefore, should not serve on the awards committee, as requested. (We also note that the event is a fund-raiser, which would also preclude the judge's requested participation, under section 100.4(C)(3)(b)(i), (iv) of the Rules.)

            In sum, the judge should not be a member of the National Women's Political Caucus, but may be a member of the League of Women Voters. Further, the judge may also be a member of Planned Parenthood and the New York Civil Liberties Union, provided that such membership does not involve the judge in litigated matters or publicly associates the judge with organizational positions on matters of public controversy.

1. The Committee notes that section 100.4(C)(3)(a)(ii) of the Rules prohibits a full- time judge from serving "as an officer, director, trustee or non-legal advisor if it is likely that the organization . . . will be engaged regularly in adversary proceedings in any court."