Opinion 15-210

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

December 3, 2015

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 be a member of the Shooters Committee on Political Education. 

Rules:          26 USC 501(c)(3)-(4); 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.4(C)(3); 100.5(A)(1)(b); Opinions 15-77; 14-117; 14-95; 14-29; 09-70; 09-56; 98-101.

Opinion:

         A full-time judge asks whether he/she may remain a member of a local chapter of the Shooters Committee on Political Education (SCOPE). The judge is aware of Opinion 09-56, which advised that membership was permissible, subject to certain limitations, but is uncertain whether relevant circumstances have changed since 2009. The judge directs the Committee’s attention generally to SCOPE’s website. The “About” page identifies SCOPE as a “statewide 501(c)(4) organization dedicated to preserving the 2nd amendment rights for the residents of New York State.”¹

         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]). Although a judge may generally be a member of “an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit” (22 NYCRR 100.4[C][3]), a judge may not be “a member of a political organization,” other than enrollment and membership in a political party (22 NYCRR 100.5[A][1][b]). The term “political organization” includes a political party or a political club, but the definition also encompasses a group whose “principal purpose ... is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).

         Thus, the initial question is whether SCOPE is a “political organization” within the meaning of the Rules. Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity” (Opinion 14-117 n.2), whereas not-for-profit entities such as SCOPE, which are exempt under 26 USC 501(c)(4), may engage in “some partisan political activity” without jeopardizing their tax-exempt status (Opinion 14-117 n.5).

         However, “[t]he fact that [501(c)(4)] 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” (Opinion 14-117 n.5). It is also necessary to consider the organization’s “principal purpose” (22 NYCRR 100.0[M]) as reflected in its mission and public activities (see Opinion 14-117 n.2 [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”]).²

         In some instances, the Committee has concluded a particular 501(c)(4) organization is a “political organization” under the Rules. Thus, for example, the Committee has advised that a judge may not be a member of a 501(c)(4) organization which is primarily engaged in substantial political activity in support of specific candidates (see Opinion 14-95 [organization that “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government”]). Similarly, the Committee has advised that MoveOn.org’s 501(c)(4) educational advocacy arm is a “political organization” under the facts presented, as its primary purpose appears to involve supporting its own political action committee (see Opinion 14-117 [concluding that the educational arm’s stated purpose “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’” works essentially “to support certain candidates based upon their views of certain political issues”]).

         Here, the inquiring judge states, and SCOPE’s mission statement and current website confirm, that SCOPE does not align itself with any political party nor does it endorse or promote any candidates for elective office. Instead, SCOPE’s primary purpose is apparently to educate the public about firearm ownership, Second Amendment rights and legislation. Under these circumstances, the Committee concludes that SCOPE is not a “political organization” within the meaning of the Rules (22 NYCRR 100.0[M]; 100.5[A][1][b]).

         The second question, whether a judge may maintain membership in a not-for-profit organization that engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities, is well-settled. The Committee has advised that a judge may contribute to such organizations and join as a regular member, subject to certain limitations (see Opinions 15-77 [Planned Parenthood]; 14-29 [“non-partisan feminist coalition” which advocates for and influences legislative and social policy affecting women and children]; 09-70 [Birthright]; 98-101 [Planned Parenthood and NYCLU]). For example, a judge who joins such an organization must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization (see Opinions 15-77; 14-29; 09-70; 98-101).³

         Accordingly, the Committee reaffirms Opinion 09-56 on the facts presented. This judge may be a regular member of SCOPE, provided such membership does not involve the judge in organizational litigation or publicly associate him/her with organizational positions on matters of public controversy. The judge may not assume a leadership position in the organization. Furthermore, “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” (Opinion 09-56). As with other such entities, the judge should not contribute to a “political action committee or other political arm of the organization” (Opinion 15-77).

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         ¹ The judge has not directed the Committee’s attention to any specific aspect of SCOPE’s website that might cause concern, and the Committee declines to undertake a review of the entire website.

         ² Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity” (Opinion 14-117 n.2).

         ³ The Committee has explained that “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” (Opinion 14-29).