December 10, 2020
Digest: A judge may be a regular member of a not-for-profit civic entity, organized by local homeowners, that seeks zoning changes in the judge’s neighborhood, but may not serve on its board of trustees or otherwise be involved in the entity’s leadership.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3)(a)(i)-(ii); 100.5(A)(1); Opinions 20-128; 20–70; 17-70; 98-137.
A judge-elect asks if they may continue to be involved in a 501(c)(3) not-for-profit civic organization after assuming full-time judicial office.1 The entity is “a not-for-profit, non-political corporation” established by a “group of homeowners” and is attempting to improve the neighborhood in which the judge resides, by working with local government officials “to examine the existing zoning rules” and propose changes “to more accommodate the needs of the local community.” The entity hopes these zoning changes will encourage residents to remain in the community. The judge acknowledges that the entity’s involvement with zoning issues could be controversial, although because the effort is community-based, the judge considers it unlikely that any substantial controversy or litigation would arise. The entity has been working with the municipality’s planning department and has also retained an attorney to engage in lobbying. The judge is currently a member of the entity’s board of trustees and has, in the past, participated in calls with other board members and various municipal agencies and officials. If permitted to continue with the entity, the judge would refrain from (a) signing documents on behalf of the entity, (b) using their judicial title or position to influence the project, or (c) providing legal guidance or representation. The judge asks if it is permissible to remain on the board and, if so, what further limitations may apply.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge generally may engage in extra-judicial activities that do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge may not serve as an officer, director, trustee or non-legal advisor of a not-for-profit entity if it will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][a][i]) or, if the judge is full-time, “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]). A judge also may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]). In addition, a full-time judge may not appear at a public hearing before an executive or legislative body or official on matters unrelated to the law, the legal system or the administration of justice “except when acting pro se in a matter involving the judge or the judge’s interests” (22 NYCRR 100.4[C]).
We have said that involvement in matters of “substantial public controversy” may cast reasonable doubt on a judge’s ability to be impartial in performing judicial functions (see e.g. Opinion 20-128). Thus, we have said judges must avoid inserting themselves “unnecessarily into public controversy” in their extra-judicial activities (id.). As a result, if substantially all of the activities of an organization involve the adoption, advocacy and pursuit of policies and positions in matters that are of substantial public controversy, many of which, in whole or in part, eventuate in litigation, then a judge cannot even be a member of such organization (see Opinion 98-137).
Conversely, where a not-for-profit organization may be involved in some impermissibly controversial issues, but also has substantial activities in which a judge may ethically participate, we have drawn a middle course to permit some participation. In Opinion 17-70 (citations omitted), we said:
It is well-settled that “a judge may maintain membership in a not-for-profit organization that engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities.” The Committee has thus advised that a judge may donate to such organizations and join as a regular member, with certain limitations. However, a judge who joins such a group may not be involved in its litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in the entity...
Indeed, in Opinion 20-128 (citations omitted) we explained why we distinguish between regular membership and leadership roles when a not-for-profit organization is involved in such a mixture of permissible and impermissible activities:
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.
We have applied these principles in a variety of contexts. For example, in Opinion 20–70, we considered a town judge’s involvement with the local Grange and concluded the judge could be a regular member because the Grange worked with community groups and schools to develop educational programs “to promote rural interests and spread an appreciation of agriculture.” However, the Grange also engaged in advocacy and lobbying with the town government concerning local laws, policies, and/or regulations, which would be impermissible for a judge. Thus, we said (id. [citations omitted]):
[We] believe it may be difficult, if not impossible, to avoid the appearance of lending the prestige of judicial office to the Grange’s proposals if this judge were an officer of the Grange. Further, matters involving violations of local laws - both those adopted or modified in response to the Grange’s advocacy and those left unchanged if the Grange’s suggestions are rejected - will most certainly come before the town court.
Ultimately, we said the judge could be a regular member of the group but must not maintain “leadership roles in the entity or otherwise publicly associate him/herself with organizational positions on controversial issues” (id.). We advised the judge to resign as an organization officer, whether president, secretary, treasurer, or the like. In essence, it would be improper to hold a “leadership” role in an organization that advocated “positions on controversial issues.”
Here, while the entity seeks to improve the neighborhood in which the judge resides - a matter of personal interest to the judge as a local homeowner - the judge advises that the entity will be seeking zoning changes in the municipality. We are not persuaded by the judge’s view that these zoning changes are unlikely to result in substantial local controversy or litigation, especially as the entity has employed a lobbyist and the judge has previously (as a non-judge) participated in calls with municipal agencies and local officials and advocated for the entity’s positions on zoning issues.
In our view, the judge’s continued involvement in the entity’s leadership would impermissibly lend the prestige of judicial office to the entity’s efforts to change local zoning laws. While some zoning changes may be less controversial than others, zoning laws - the government’s control over an individual’s property rights - are, by their nature, always in the public realm and subject to dispute by either the property owner or their neighbors.2
For these reasons, we conclude the judge may be a regular member of the entity but must discontinue any leadership role or position and thus may not serve as a trustee. In reaching this conclusion, we necessarily assume the entity has, or will have, regular members who do not participate in the trustees’ deliberations but may instead, for example, contribute financially to the entity and receive updates about the trustees’ decisions.
1 For simplicity, we will refer to the inquirer as a judge, since we are addressing their obligations after assuming judicial office.
2 We note that while a full-time judge may act pro se in seeking a zoning variance or permits for the judge’s own property, even if this proves controversial, the judge cannot undertake such actions on behalf of others (see 22 NYCRR 100.4[C]).