2011-09 (April 27, 2011)
Membership; Event, attendance/appearance; Appearance of Impropriety
Rule 1.2 and 3.6

Issue: May a Judicial Official serve as a delegate at the annual meeting of an organization that promotes, inter alia, a particular national origin and religious belief, and receive a stipend to offset partially the cost of attending the meeting? As a delegate, the Judicial Official would be expected to vote on policy matters, fiscal outlays, and the election of a new president and new board members.

Additional Facts: The Committee considered the following information: (1) the organization has a mission to promote a particular national or ethnic origin and culture, education, philanthropy, and civic responsibility, (2) the organization limits membership to a certain sex a certain age category, and to those who subscribe to a particular religious belief, (3) the organization and/or affiliated entities manage scholarship and charitable foundations, provide leadership and development programs, and run a non-profit housing corporation, (4) the organization and/or affiliated entities engage in political advocacy, both at the national and international level, and (5) the organization and/or its affiliates have approximately one dozen pending cases in Connecticut state courts.

Response: Based on the facts presented, including that: (1) the organization practices discrimination because it excludes certain categories of individuals from full membership on the basis of sex and religion, (2) the organization and/or its affiliates are involved in political advocacy, and (3) the organization and/or its affiliates have a significant number of pending cases in Connecticut courts, the Committee concluded that serving as a delegate at the annual meeting would violate Rule 1.2, which states that a judge “should act at all times in a manner that promotes public confidence in the…impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
The Committee was not specifically asked to determine whether the organization practices or “engages in unlawful discrimination” under Rule 3.6 and no such determination with respect to Rule 3.6 was necessary in light of the other grounds for the response in this instance. The Committee notes, however, that the Committee is not equipped and has not been charged to undertake the kind of fact-finding investigation into the history, background, policies and internal membership that would be required to make such determination. Accordingly, the Committee believes it is the obligation of each Judicial Official to make his or her own determination as to whether an organization to which the Judicial Official belongs practices or engages in “unlawful discrimination.” See New York Advisory Committee on Judicial Ethics Opinion 96-82 (Mar. 13, 1997). Although the Code of Judicial Conduct does not define the meaning of “unlawful discrimination,” the Committee concluded that the Judicial Official may wish to consider the commentary to Rule 3.6 of the ABA Model Code of Judicial Conduct, which in part prohibits “invidious discrimination” on the grounds of sex, religion, national origin, or ethnicity. Comment 2 to Rule 3.6 of the ABA Model Code of Judicial Conduct states as follows

An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.

See also New York Advisory Committee on Judicial Ethics Opinion 96-82 (Mar. 13, 1997) (noting that “[i]f the exclusionary practice is reasonably related to a legitimate purpose (i.e., the ‘preservation of religious, ethnic, cultural or other values of legitimate common interest to its members’), membership is not prohibited” but that if “the discriminatory practice is one in which the policy of exclusion is arbitrary, and excludes persons or categories of persons solely on the basis of the characteristic in question, and by reason of such exclusion stigmatizes such persons or categories of persons solely on the basis of the characteristic in question, … then the judge must conclude that the discrimination is invidious.”).

Although not included in the inquiry, the Committee observed that the Judicial Official may attend the annual meeting if the Judicial Official determines that his/her membership is permissible under Rule 3.6 as read in the context above noted.