Opinion 14-117
September 4, 2014
Digest: Although a judge generally may make financial contributions to not-for-profit organizations, a judge may not do so where such contributions will readily be perceived as improper political activity.
Rules: 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.4(A)(1)-(3); 100.5; 100.5(A)(1); 100.5(A)(1)(h); Opinions 14-95; 09-56; 09-48; 08-73; 06-115; 05-101; 04-140; 03-45; 98-101 (Vol. XVII); 96-147 (Vol. XV); 95-131 (Vol. XIV); 89-55 (Vol. III); 89-46 (Vol. III).
Opinion:
A judge asks about the ethical propriety of making contributions to several organizations. For simplicity, the Committee will discuss the organizations in three different categories based on information provided in the inquiry or on the entity’s website.
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]). However, the Rules Governing Judicial Conduct place extensive restrictions on judges’ political activity (see generally 22 NYCRR 100.5) to help prevent any public perception of entanglement of the judiciary itself in the political process (see Opinion 05-101). Thus, for example, while a judge may participate in political activity “on behalf of measures to improve the law, the legal system or the administration of justice,” subject to certain limitations (22 NYCRR 100.5[A][1]; see e.g. Opinion 08-73), a judge may not make a contribution to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]).1
The Committee has advised that a judge’s donation to a not-for-profit charitable organization does not cast reasonable doubt on the judge’s capacity to act impartially as a judge and is therefore ethically permissible (see Opinion 09-48; 22 NYCRR 100.4[A][1]). For example, the Committee has advised that a judge may contribute $1,500 from his/her personal funds and participate as a bicyclist in a Boston-New York AIDS ride, where the event is “sponsored by a not-for-profit corporation, and intended to raise funds for organizations that provide AIDS-related services” (Opinion 96-147 [Vol. XV]). Applying these principles, the Committee concludes that the inquiring judge may make financial contributions to the following organizations, as their activities and missions appear to be essentially charitable in nature2 within the meaning of the Rules and the Committee’s prior opinions:
• Common Ground Community, which seeks “to strengthen individuals, families and communities by developing and sustaining exceptional supportive and affordable housing as well as programs for homeless and other vulnerable New Yorkers.”
• Community Solutions, which “helps communities solve the complex problems facing their most vulnerable, hard hit members.”
• Heifer International, which seeks “to work with communities to end world hunger and poverty and to care for the Earth.”
• Broadway Cares/Equity Fights Aids, an entertainment-industry “charitable and educational” organization dedicated to assisting people with HIV/AIDS and providing a “safety net of social services” for thousands in the theatrical community.
• GMHC, whose mission is to “end the AIDS epidemic and uplift the lives of all affected.”
The fact that a not-for-profit organization devoted to the improvement of the law, the legal system and the administration of justice may also be involved in some activities in which a judge may not personally participate does not necessarily preclude a judge from making a financial contribution to the organization. For example, the Committee has advised a judge may make a monetary contribution to a not-for-profit legal services organization that regularly appears in court as counsel or may itself appear as a party (see Opinions 04-140; 95-131 [Vol. XIV]; 89-46 [Vol. III]). Similarly, the Committee has advised that a judge may contribute to the New York Civil Liberties Union (see Opinion 03-45).3 Accordingly, the Committee concludes the inquiring judge may make financial contributions to the following not-for-profit organizations which are involved in the improvement of the law, the legal system and the administration of justice, as such contributions do not appear to constitute impermissible political activity within the meaning of the Rules and the Committee’s prior opinions under the facts presented:4
1. Highlander Research and Education Center, which describes itself as a “catalyst for grassroots organizing and movement building in Appalachia and the South... We develop leadership and help create and support strong, democratic organizations that work for justice, equality and sustainability in their own communities and that join with others to build broad movements for social, economic and restorative environmental change.”
2. The Southern Poverty Law Center “is dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society.”
3. The NAACP states that its mission is “to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination.”
Finally, the judge asks whether he/she may make financial contributions to MoveOn.Org and to Emily’s List. A judge may not make donations to a “political organization” within the meaning of the Rules (22 NYCRR 100.0[M]; 100.5[A][1][h]; Opinion 14-95). The Committee has concluded that the National Women’s Political Caucus is a “political organization” within the meaning of the Rules, because it “identifies viable candidates for judicial office and assists them in getting elected through financial contributions, campaign volunteers and technical assistance” (Opinion 98-101 [Vol. XVII] [concluding that membership “would constitute impermissible political conduct”]). The Committee reached a similar conclusion concerning a not-for-profit organization that is permitted to participate in political activity and “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government” and, therefore, advised that a judge may not make donations to the organization (Opinion 14-95). Similarly, the Committee has advised that a judge may not make a contribution to a political action committee (see Opinion 89-55 [Vol. III]).
The mission of Emily’s List is to elect pro-choice Democratic women to office, and MoveOn.Org is a political action committee. While MoveOn.Org also encompasses a nonprofit educational advocacy arm, the purpose of that sub-group is to “unleash progressive people power by encouraging and supporting MoveOn members and other progressives to step up as the leaders of their own campaigns for social change.” Its purpose, as the Committee understands it, is to support certain candidates based upon their views of certain political issues.5 These organizations thus appear to be “political organizations” within the meaning of the Rules (see 22 NYCRR 100.0[M]; Opinions 14-95; 98-101 [Vol. XVII]; 89-55 [Vol. III]), and therefore the inquiring judge may not make contributions to them (see 22 NYCRR 100.5[A][1][h]; Opinions 14-95; 89-55 [Vol. III]), as such contributions would readily be seen as impermissible political activity.
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1 A “political organization” is defined broadly as “a political party, political club or other group, the principal purpose of which is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).
2 Each of these entities is currently recognized as a tax-exempt organization under Internal Revenue Code § 501(C)(3), a status which tends to suggest that an organization is not engaged in partisan political activity (see Opinion 06-115 [noting agency’s statement that a 501[C][3] organization “may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activities for or against political candidates”]; see also Internal Revenue Service Publication 557, ch 3 [“If any of the activities (whether or not substantial) of your organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization will not qualify for tax-exempt status under section 501(c)(3)”]). Of course, judges must ultimately look to the Rules Governing Judicial Conduct, rather than the Internal Revenue Code, for guidance on whether their proposed participation in a particular organization is permissible.
3 The Committee has previously noted that the New York Civil Liberties Union is involved in matters that judges may participate in, such as “education about the Bill of Rights,” as well as “matters of great public controversy, including an involvement in litigation, either as direct participants or as amici” (Opinion 98-101 [Vol. XVII]).
4 All three entities are recognized as tax-exempt under Section 501(C)(3) of the Internal Revenue Code, which further reinforces this conclusion.
5 MoveOn.org’s educational arm has tax-exempt status under Section 501(C)(4) of the Internal Revenue Code, which allows the organization to participate in some partisan political activity (see Internal Revenue Service Publication 557, ch 4 [“if you submit proof that your organization is organized primarily to promote social welfare, it can obtain exemption even if it participates legally in some political activity on behalf of or in opposition to candidates for public office”]). The fact that such organizations are legally permitted to engage in some political activity does not necessarily resolve the question of whether they are “political organizations” under the Rules. For example, the Committee has advised that a judge may be a member of a 501(C)(4) organization whose “primary purpose is to educate the public about firearm ownership, Second Amendment rights and legislation,” where the organization “does not endorse any candidates of any party” (Opinion 09-56), but a judge may not be a member of a 501(C)(4) organization that “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government” (Opinion 14-95).