Opinion 21-142
September 9, 2021
Digest: (1) Judges may attend a conference co-sponsored by a non-political, not-for-profit charitable and educational organization as well as by the New York State Assembly Puerto Rican/Hispanic Task Force. (2) As the conference is a fund-raiser, a judicial association may not be the guest of honor but may accept an unadvertised award ancillary to the event. Accordingly, the fact that the judicial association will be honored must not be advertised in advance by the event sponsors; it may be revealed in a program or agenda circulated during the event but must not be mentioned in advance on the invitations or announcements. The judicial association may nonetheless notify its own members that the association will be honored at the conference should they wish to attend. The judicial association must not invite or solicit attendance at the conference beyond its own members.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(3)(b)(ii); 100.5(A)(1); 100.5(A)(1)(g); Opinions 20-161; 20-41; 19-108; 17-80; 15-100; 12-52; 10-134; 08-156; 06-115; 04-27; 03-46; 02-98; 97-97; 93-78; 91-41.
Opinion:
The inquiring judge writes on behalf of a judicial association. The association has been chosen to be honored at an upcoming conference that is co-sponsored by SOMOS, which is a 501(c)(3) not-for-profit charitable and educational organization, and the New York State Assembly Puerto Rican/Hispanic Task Force.1 The purpose of the conference is “to create an environment and think tank for Hispanic initiatives, but also to raise funds for the conferences themselves and for scholarships.” The judge asks if the judicial association may be honored at the conference.
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]). Judges must not “directly or indirectly engage in any political activity” except as expressly permitted (see 22 NYCRR 100.5[A][1]). For example, a judge outside their applicable window period for election or re-election to judicial office may not attend political gatherings (see 22 NYCRR 100.5[A][1][g]). Moreover, where an entity other than a “court employee organization, bar association or law school” holds a fund-raising event, a judge “may not be a speaker or the guest of honor,” but may accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]).
Generally, we have held judicial associations to the same standards as individual judges (see e.g. Opinions 15-100 [public comment rule]; 12-52 [charitable contributions]; 17-80 [receiving donations]; 93-78 [political activity and charitable fund-raising]; 97-97 [intervening in judicial or administrative proceedings]).2
1. Attending the Conference
In Opinion 04-27, the New York State Assembly Puerto Rican/Hispanic Task Force extended an invitation to judges to attend their exclusively sponsored “Task Force Conference.” There was, unlike the present inquiry, no co-sponsor. Based on the information provided, we concluded that the inquiring judge must not attend what appeared to be a “political and legislative gathering” (see id.; 22 NYCRR 100.5[A][1][g]). Likewise, we said a full-time judge may not attend the annual weekend conference in Albany sponsored exclusively by the New York State Association of Black and Puerto Rican Legislators Inc. (see Opinion 20-41).
We believe the present inquiry is distinguishable. Significantly, the conference is sponsored or co-sponsored by a not-for-profit charitable and educational entity (i.e. SOMOS). Thus, we conclude that attendance and participation may fall within the bounds of permissible extra-judicial activity, provided that certain conditions are met (see Opinions 06-115; 03-46; 02-98).
In Opinion 02-98, we said that a judge may attend a fund-raising event sponsored by a local Black and Hispanic Coalition, noting that although the group had apparently endorsed certain political candidates, it was primarily engaged in a “broad range of non-political non-partisan civic activities,” and, thus, attendance did not constitute impermissible political activity. In Opinion 03-46, we said that a judge may present a lecture at a program sponsored by the Latin Advocacy Coalition Campaign Academy, a non-partisan group engaging in an educational activity. However, we cautioned the judge not to participate in any political activity that might be associated with the event (see id.). As we explained in Opinion 06-115:
In Opinions 02-98 and 03-46, judges attended and participated at the express invitation of the civic or educational organization involved and not of a political group. ... We regard the distinction as essential. As stated, Somos El Futuro, Inc. is a section 501(c)(3) organization. 26 U.S.C. § 501(c)(3). This means, according to the official website of the Internal Revenue Service that, as such, “it 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.”
Here, likewise, as the conference invitation has been extended by SOMOS, the not-for-profit charitable and educational co-sponsor of the event (and successor to SOMOS El Futuro, Inc.), we conclude the upcoming conference is not an impermissible partisan political event. Accordingly, we conclude that judges may attend the conference.
2. Honoring the Judicial Association
With respect to the proposal to honor the inquiring judge’s judicial association at the event, however, the information provided makes clear that this particular conference is a fund-raising event, as it is intended to raise money for scholarships and for additional conferences in future.
Because the co-sponsors of this fund-raising event do not fall within the three specified exceptions, we conclude that neither a judge nor a judicial association may be “a speaker or the guest of honor” at the conference (22 NYCRR 100.4[C][3][b][ii]). However, the rules clearly allow a judge or judicial association to accept “an unadvertised award ancillary to such event” (id.). For completeness, we note that “a judge may speak upon accepting an award, but the remarks must be limited to a brief expression of thanks” (Opinion 10-134).
Accordingly, the judge should direct the event sponsors not to advertise in advance the fact that the judicial association will be honored at the conference. It may be revealed in a program or agenda circulated during the event but must not be mentioned in advance on the invitations or announcements.
We further conclude the judicial association may notify its own members that the association will be honored at the conference should they wish to attend. However, because the event is intended to raise funds, the judicial association must not invite or solicit attendance at the conference beyond its own members (cf. Opinions 19-108 [“it is permissible to solicit funds from judicial colleagues over whom a judge has no supervisory or appellate authority when it is non-coercive and clearly motivated by ordinary workplace collegiality. However, the judge must not solicit or accept funds from non-judges.”] [citations omitted]; 08-156 [a judge “may solicit other judges to join [an Inn of Court], but may not solicit attorneys to join”]).
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1 We have previously addressed conferences sponsored or co-sponsored by these organizations or their predecessors (see Opinions 06-115 [conference co-sponsored by SOMOS el Futuro, Inc.]; 04-27 [conference sponsored solely by the New York State Assembly Puerto Rican/Hispanic Task Force]).
2 We have recognized some minor exceptions, typically when a particular aspect of the Rules would be difficult or impossible to apply to a judicial association (see Opinions 17-80 fn 2 [declining to apply a gift reporting requirement to a judicial association]; 91-41 [judicial association, but not individual judges, may sell tickets to non-fundraising dinner]; cf. Opinion 20-161 [if judicial association reports an attorney, its individual officers and members need not disqualify]).