Opinion 09-56

AMENDED AND REISSUED AS JOINT OPINION 15-210/09-56

March 12, 2009

NOTE: On October 26, 2018, the Committee released Joint Opinion 15-210/09-56, which supersedes the two prior separate opinions. It clarifies a judge’s obligations on becoming aware that a 26 USC 501(c)(4) not-for-profit entity which has hitherto eschewed political activity has become involved in supporting or opposing candidates for public office. Please refer to the new Joint Opinion for the Committee’s current views.

Digest:           A judge may continue his/her membership in a local chapter of Shooters’ Committee on Political Education but may not serve on its board.

Rules:           22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 08-73; 01-65 (Vol. XX); 98-101 (Vol. XVII); 98-74 (Vol. XVII); 93-108 (Vol. XII).

Opinion:

          A judge asks whether he/she may continue membership in a local chapter of Shooters’ Committee on Political Education (SCOPE), a not-for-profit organization that is devoted entirely to gun-related issues, and whether he/she may serve on its board. According to information the judge submitted, the local chapter’s mission is to (1) inform members about anti-gun/gun owner legislation; (2) stop anti-gun/gun owner legislation in New York State; and (3) educate the public on the positive aspects of firearm ownership, and their Second Amendment rights. The judge states that “SCOPE is a 501 C 4 not for profit corporation, it is political in nature but does not endorse any candidates of any party.”¹

          A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities, but must ensure that any such activity (1) does not cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) does not detract from the dignity of judicial office; and (3) does not interfere with the proper performance of judicial duties and is not incompatible with judicial office (see 22 NYCRR 100.4[A] [1]-[3]). Except as specifically permitted by the Rules Governing Judicial Conduct or by law, a judge may not engage either directly or indirectly in any political activity (see 22 NYCRR 100.5[A][1]; Opinion 08-73 [judge may not form a political action committee]). Nevertheless, a judge may, with some limitations, lobby for measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][iii]).

         In prior opinions, the Committee has advised that a judge may be a member of a non-partisan citizens' committee that seeks ways to reduce violence in the community, but may not participate in controversial issues, litigation, fund raising or other activities incompatible with judicial office (see Opinion 93-108 [Vol. XII]). The Committee also has advised that a judge may be a member of Planned Parenthood and the New York Civil Liberties Union (see Opinion 98-101 [Vol. XVII]) as these organizations engage in activities in which judges may participate, such as promoting women’s access to reproductive health care and educating the public about the Bill of Rights (id.). The fact that these organizations also engage in lobbying, advocacy and litigation that can generate public controversies does not preclude a judge’s membership, so long as the judge avoids participating in those specific activities (id.).

         In contrast, the Committee has advised that a judge may not be a member of the National Women's Political Caucus (see Opinion 98-101 [Vol. XVII]), an organization that identifies viable candidates for judicial office and assists them in getting elected by providing financial contributions, campaign volunteers and technical assistance, as membership in such an organization would constitute impermissible political conduct (see id.; 22 NYCRR 100.5[A][1]). Nor should a judge serve on a regional coalition of black elected officials that will “prioritize issues that elected and appointed government officials should address” as the judge would become involved in impermissible political activity and matters of public controversy (Opinion 01-65 [Vol. XX]).

         Although the Committee has not previously considered whether a judge may maintain membership in a group that lobbies in favor of gun ownership, the Committee has addressed the ethical propriety of a judge serving on a broad-based, non-partisan citizens’ committee that seeks to reduce violence in the community. The group’s activities would include “the promotion of legislation concerning gun safety” (Opinion 93-108 [Vol. XII]). The Committee advised that while “in principle” a judge may serve on the citizens’ committee, “the judge should exercise care not to participate in controversial issues” (id.).

         In the Committee’s view, because the inquiring judge advises that SCOPE’s primary purpose is to educate the public about firearm ownership, Second Amendment rights and legislation, it is similar in nature to Planned Parenthood and the New York Civil Liberties Union. Therefore, as the Committee previously has advised that judges are not prohibited from joining those organizations, (Opinion 98-101 [Vol. XVII]), the inquiring judge may maintain membership in SCOPE. However, because the judge should avoid participating in controversial issues, such as stopping anti-gun/gun owner legislation in New York State, he/she should not serve on the board of a local SCOPE chapter (see 22 NYCRR 100.4[A][1]; Opinion 98-74 [Vol. XVII]). The Committee further notes that as long as the judge maintains membership in SCOPE, the judge must disqualify him/herself, subject to remittal, should the organization appear in the judge's court (see 22 NYCRR 100.3[E][1], [F]; Opinion 98-101 [Vol. XVII]).  

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           ¹ In order to qualify for an exemption under section 501(c)(4) of the Internal Revenue Code, the organization's net earnings must be devoted primarily to charitable, educational, or recreational purposes (see Internal Revenue Service Publication 557, ch 4, http://www.irs.gov/pub/irs-pdf/p557.pdf [web link updated June 5, 2014]).