The Volokh Conspiracy

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Judge Can Be Member of N.Y. ACLU Affiliate, but not One of Its Directors


From a decision of the N.Y. Advisory Committee on Judicial Ethics, handed down on Jan. 27 but just posted on Westlaw:

The inquiring full-time judge asks if it is ethically permissible to serve on the board of directors of the New York Civil Liberties Union (NYCLU). As the organization's website explains:

Our mission is to defend and promote the fundamental principles and values embodied in the Bill of Rights, the U.S. Constitution, and the New York Constitution, including freedom of speech and religion, and the right to privacy, equality and due process of law, with particular attention to the pervasive and persistent harms of racism. The NYCLU works toward its mission by advocating for all New Yorkers to have equal access to opportunities and the equal ability to participate in government decisions that affect them. This includes planning and development decisions, which historically have excluded or intentionally discriminated against Black, Indigenous, and Latinx New Yorkers.

To advance this mission, the NYCLU "works in the courts as a public-interest law firm, bringing constitutional test cases in state and federal court" and engages in "[l]egislative advocacy" as part of an "interdisciplinary approach to protecting civil liberties, which also includes litigation, community organizing, and communications."

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not (1) cast 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][1]-[3]). Subject to these and other limitations, a judge may be a member of an organization devoted to the improvement of the law, the legal system or the administration of justice or of a not-for-profit civic organization (see 22 NYCRR 100.4[C][3]). Moreover, a full-time judge may ordinarily serve as an officer or director of such an organization, if it is unlikely to "be engaged regularly in adversary proceedings in any court" (22 NYCRR 100.4[C][3][a][ii]) or to "be engaged in proceedings that ordinarily could come before the judge" (22 NYCRR 100.4[C][3][a][i]).

We have advised that a judge may be a regular member of the NYCLU, as this organization engages in certain activities in which judges may participate, such as educating the public about the Bill of Rights (see Opinion 98-101). However, since the NYCLU engages in extensive lobbying, advocacy and litigation, 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" (id.).

We reach a different conclusion concerning service on the NYCLU's board of directors. As explained in Opinion 14-29 (citations omitted):

Because a judge's public involvement in extra-judicial matters of substantial public controversy may raise questions about a judge's ability to act impartially in the performance of judicial functions, the Committee has advised that a judge should not serve on the board of directors of certain potentially controversial organizations, even though he/she may be a regular member. 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.

In this regard, we note the NYCLU frequently takes positions on matters of substantial public controversy and engages in lobbying and advocacy to support them. Moreover, the NYCLU regularly participates in adversarial litigation, whether as an amicus or as a party, in furtherance of its mission. This precludes a full-time judge from serving as an officer or director of the organization, even if such cases are unlikely to come before the judge (see 22 NYCRR 100.4[C][3][a][ii] [full-time judge may not serve as officer, director, trustee, or non-legal advisor of an entity if it will likely "be engaged regularly in adversary proceedings in any court"] [emphasis added]).

Accordingly, the inquiring judge may not serve on the NYCLU's board of directors but may be a regular member, subject to generally applicable limitations on judicial speech and conduct.