Opinion 14-95
June 12, 2014
Digest: A judge who is a candidate for judicial office may attend an event sponsored by a not-for-profit political organization only during his/her Window Period, but may not make donations, attend meetings, become a member, hold a leadership position, or participate in the organization in other ways.
Rules: 26 USC § 501(c)(4); 22 NYCRR 100.0(M), (Q); 100.2; 100.2(A); 100.4; 100.4(C)(3)(a)(ii); 100.4(C)(4)(b)(ii); 100.5(A)(1); 100.5(A)(1)(a),(b),(h); 100.5(A)(2)(v). Joint Opinions 13-99/13-100/13-101/13-102; 06-80/06-81; Opinion 13-60.
Opinion:
A judge who is a candidate for judicial office within his/her Window Period 1 asks whether he/she may attend an event sponsored by a not-for-profit organization that is permitted to engage in political activity.2 The organization’s website reveals its mission relates to the legality and accessibility of abortion services. In particular, the organization seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government. The judge also asks whether he/she may make donations, attend meetings, become a member, hold a leadership position, or participate in the organization in other ways.
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, but must minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4). In particular, a full-time judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization that will not be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]) and may attend a not-for-profit organization’s fund-raising event (see 22 NYCRR 100.4[C][3][b][ii]).
Nevertheless, a judge is barred from engaging in political activity except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]). For example, a judge may not attend political gatherings unless the judge is a candidate for judicial office within his/her Window Period (see generally 22 NYCRR 100.5[A][2]). However, a judge may not at any time, even during his or her Window Period, act as a leader or hold an office in a political organization, be a member of a political organization other than enrollment and membership in a political party, or make a contribution to a political organization (see 22 NYCRR 100.5[A][1][a], [b], [h]). A “‘political organization’ denotes 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]).
Because a primary mission of the organization at issue here is to engage in substantial political activity in support of specific candidates, the Committee believes the organization is a “political organization” for purposes of the Rules Governing Judicial Conduct (see 22 NYCRR 100.0[M]). Therefore, attending meetings, becoming a member, holding a leadership role or participating in the organization in other ways is prohibited political activity (see 22 NYCRR 100.5 [A][1]).
However, while the inquiring judge is a candidate for judicial office within his/her Window Period, the judge may purchase two tickets to, and attend, politically sponsored dinners and other functions, subject to certain price limitations (see 22 NYCRR 100.5[A][2][v]; Joint Opinions 13-99/13-100/13-101/13-102; 06-80/06-81; Opinion 13-60). Consequently, the inquiring judge may attend the events the not-for-profit organization sponsors, but only during his/her Window Period, in furtherance of his/her campaign; but he/she is prohibited from making donations, attending regular meetings, becoming a member, holding a leadership position, or participating in the organization in other ways at any time, irrespective of his/her Window Period.
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1 “ ‘Window Period’ denotes a period beginning nine months before a primary election, judicial nominating convention, party caucus or other party meeting for nominating candidates for the elective judicial office for which a judge or non-judge is an announced candidate, or for which a committee or other organization has publicly solicited or supported the judge’s or non-judge’s candidacy, and ending, if the judge or non-judge is a candidate in the general election for that office, six months after the general election, or if he or she is not a candidate in the general election, six months after the date of the primary election, convention, caucus or meeting” (22 NYCRR 100.0[Q]).
2 See 26 USC § 501(c)(4).