Opinion 17-70
May 4, 2017
Digest: (1) A court attorney-referee who is an ordained rabbi may teach, preach, and write on Israel-related issues concerning the law, the legal system or the administration of justice, but not on non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict. (2) A court attorney-referee may join and participate in non-political events sponsored by the American Israel Public Affairs Committee and Hiddush, which appear to have substantial non-political purposes, but may neither join nor attend events sponsored by J Street.
Rules: 26 USC 501(c)(3)-(4); 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(1); 100.4(C)(3); 100.5(A)(1); 100.5(A)(1)(iii); 100.5(A)(1)(b), (g)-(i); 100.6(A); Opinions 17-38; 16-135; 15-227; 15-210; 15-157; 15-77; 14-117; 14-95; 14-29; 13-17; 09-70; 08-73; 07-198; 98-101; 98-46.
Opinion:
A court attorney-referee who is also an ordained pulpit rabbi asks if he/she may teach, preach, and write on several potentially controversial Israel-related matters. The referee also asks if he/she may attend events sponsored by certain non-profit entities dedicated to issues concerning Israel and/or become a member of such entities.
Court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their quasi-judicial duties and must otherwise “so far as practical and appropriate” use the rules to guide their conduct (22 NYCRR 100.6[A]; see Opinions 15-157; 07-198). Accordingly, a referee must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).
1. Public Comment on Israel-Related Matters
The inquirer wishes to teach, preach, and write about Israel and “matters bearing on relationships and status with and in the State of Israel.” The referee identifies certain largely non-legal issues he/she wishes to discuss, such as “the Israeli-Palestinian conflict, the evolving role of non-Orthodoxy in Israeli secular and religious life, access to and regulating holy sites, and the status of civil versus religious authority in Israel.” He/she would also like to address legal issues directly concerning the rule of law and the administration of justice, such as “the Israeli legal status of [the referee’s] non-Orthodox rabbinic acts undertaken in the United States and in Israel;” the referee’s “access to and freedom of worship at holy sites in Israel on terms substantially comparable to all regardless of denomination or gender;” and “the rule of law and the constitutional separation of synagogue and state in Israel as they pertain to the foregoing.”
As judicial duties must take precedence (see 22 NYCRR 100.3[A]), a court attorney-referee’s extra-judicial activities must comport with his/her office and not (1) cast reasonable doubt on his/her duty to act impartially as referee; (2) detract from the dignity of the office; or (3) interfere with his/her quasi-judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Subject to these and other limitations, a referee may generally speak, write and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]). However, a referee must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]; Opinions 07-198; 98-46). There is greater leeway if a judge or quasi-judicial official wishes to express his/her views on matters involving the law, the legal system or the administration of justice (see e.g. 22 NYCRR 100.4[C][1]; 100.5[A][1][iii]).1
Judges and quasi-judicial officials must be sure their advocacy and writing do not compromise public confidence in their impartiality (see Opinion 16-135). Thus, we have advised judges not to be “associated with matters that are the subject of litigation or public controversy” (Opinion 17-38; see also Opinions 16-135; 98-101), since involvement in matters of “substantial public controversy” may cast reasonable doubt on the judge’s ability to be impartial in performing judicial functions (see id.). For example, a judge may publicly advocate for a change in the Penal Law by writing to executive and legislative bodies or officials, as well as other potentially interested parties, provided he/she abides by applicable limitations on judicial speech and conduct and thus eschews impermissible ex parte communications, political activity, and public comment on pending or impending matters (see Opinion 16-135). In Opinion 17-38, we advised a judge not to participate in a high-profile “March for Science” unless he/she determines, among other considerations, that “the judge’s participation will not insert him/her unnecessarily into public controversy.”
Clearly, a court attorney-referee may teach, preach, and write on Israel-related issues that are not highly politicized and controversial in the United States. We also conclude a referee may teach, preach, or write on Israel-related issues directly concerning the law, the legal system, or the administration of justice. Such extra-judicial activities are, of course, subject to generally applicable limitations on judicial speech and conduct (see e.g. 22 NYCRR 100.4[A][1]-[3]; 100.3[B][6] [ex parte communications rule]; 100.3[B][8] [public comment rule]; 100.5[A][1] [political activity]; Opinions 13-17; 08-73).
However, the referee must not publicly associate him/herself with non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict, whether by preaching or writing about them, or otherwise.
2. Involvement with Certain Israel-Related Non-Profits
The referee further asks if he/she may attend events sponsored by, or be a regular member of, three very different organizations devoted to issues concerning Israel: the American Israel Public Affairs Committee (AIPAC), J Street, and Hiddush.
Generally, a judge or quasi-judicial official may join a not-for-profit religious or charitable organization (see 22 NYCRR 100.4[C][3]). Although he/she may enroll in a political party, he/she may not be a member of any “group whose principal purpose is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M] [defining “political organization”]; 100.5[A][1][b]; Opinion 15-210). Moreover, a judge or quasi-judicial official may not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]); e.g., he/she may not attend political events (see 22 NYCRR 100.5[A][1][g]), make political contributions (see 22 NYCRR 100.5[A][1][h]), or purchase tickets to politically sponsored events, even for a non-political purpose (see 22 NYCRR 100.5[A][1][i]).2
The Committee previously observed that 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), but not-for-profit entities, 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 issue whether they are ‘political organizations’ under the Rules” (Opinion 14-117 n 5). It is also necessary to consider the entity’s “principal purpose” (22 NYCRR 100.0[M]) as stated 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”]).
It is well-settled that “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” (Opinion 15-210; see also Opinion 98-101 [organizations engaged in activities that judges may participate in, such as education about the bill of rights or women’s health counseling, as well as involved in “matters of great public controversy, including an involvement in litigation, either as direct participants or as amici”]). The Committee has thus advised that a judge may donate to such organizations and join as a regular member, with certain limitations (see Opinions 15-210 [SCOPE]; 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 New York Civil Liberties Union]). However, a judge who joins such a group may not be involved in its litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in the entity (see e.g. Opinions 15-210; 15-77; 14-29; 09-70; 98-101; see also Opinion 14-29 [“taking a leadership role in such organizations may publicly associate the judge with organizations positions on matters of public controversy, in a way that simple membership does not”]); e.g., the Committee has said a support magistrate may not be on a board of a local chapter of an entity devoted to reducing abortions by giving free and confidential help on abortion alternatives, but may join as a member (see Opinion 09-70).
In contrast, a judge may not join a 26 USC 501(c)(4) organization primarily engaged in substantial political activity to support 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”]). For example, we decided that MoveOn.org is a “political organization” under the rules (see Opinions 17-38; 14-117 [concluding that even the educational arm’s 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”]).
Applying these principles, we conclude the inquirer may not join J Street, but may be a member of AIPAC or Hiddush.
J Street endorses “political candidates who support Israeli security and peace in the Middle East” and sets forth evaluative criteria on its website for candidates who seek its endorsement. Accordingly, J Street is a “political organization” within the meaning of the Rules (see 22 NYCRR 100.0[M]), and a court attorney-referee may neither be a member nor attend its events (see 22 NYCRR 100.5[A][1][b], [g]-[i]).
We previously considered AIPAC’s purpose and tax-exempt status in concluding a judge may attend a particular non-political AIPAC event as his/her spouse’s guest (see Opinion 15-227). In particular, AIPAC’s stated purpose is “to strengthen, protect and promote the U.S.-Israel relationship in ways that enhance the security of the United States and Israel,” and it does not involve supporting or opposing particular candidates, although AIPAC “is permitted to, and does, engage in extensive political activity” (see id.). Since AIPAC engages in some activities permissible for judges as well as some potentially controversial lobbying and advocacy activities, we conclude the court attorney-referee may be a member, provided he/she does not become involved in the organization’s lobbying, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization (see Opinion 15-210).
As for Hiddush, a not-for-profit, federal tax exempt, charitable organization under 26 USC 501(c)(3), it is thus prohibited from engaging in partisan political activity. It is a “non-denominational, non-partisan Israel-diaspora partnership,” that seeks “the advancement of ‘freedom of religion and conscience’ and ‘full social and political equality without distinction on the basis of religion’, as promised in Israel’s Declaration of Independence.” Its programs include public advocacy; education of and consultation with policy makers; research and polling; coalition building; legal support for victims of religious discrimination; and educating the public via social media in Hebrew and English of position papers, reports and educational materials on religious and state issues. Again, as long as the inquirer does not become involved in the organization’s litigation and lobbying, publicly associate him/herself with its controversial public issues, or assume a leadership role, he/she may be a member (see Opinion 15-210).
Finally, the referee may also attend non-political events sponsored by AIPAC or Hiddush, including “gatherings [which] primarily concern Israel education, Israeli culture, Israeli civic affairs and ‘think tank’-style activities of interest to clergy, congregations” and others, as long as the inquirer’s participation will neither involve the court attorney-referee in impermissible political activity nor insert him/her unnecessarily into public controversy (see Opinions 17-38; 15-227). As the inquirer recognizes, he/she may not attend AIPAC’s “lobby days” before the United States Congress.
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1 We recognize that religious convictions, like political convictions, may be very strongly held; indeed, they may go to the core of one’s sense of identity. However, there is no exception to the prohibition on political activity based solely on the strength and personal significance of one’s beliefs, as this would eviscerate the rule (see e.g. Opinion 17-38). Thus, we conclude the referee’s status as a rabbi does not constitute the kind of “clear and direct personal interest at stake” within the meaning of prior opinions (id. [describing prior opinions]) that would justify involvement in all matters pertaining to Israel.
2 Although certain exceptions apply to candidates for election or re-election to judicial office within the applicable window period, these exceptions have no relevance to the present inquiry.