Opinion 23-217
February 1, 2024
Digest: A
judge (1) may not speak about the judge’s “philosophy” on pistol permits to gun
advocacy groups or sportsmen/sportswomen;
(2) may make non-political charitable contributions and/or be a regular member
of the ACLU, Southern Poverty Law Center, Sierra Club, and Planned Parenthood,
but may not donate to their political arms or assume any leadership position
within them;
(3) may make contributions to and/or be a member of not-for-profit educational,
religious, charitable, cultural, fraternal, or civic organizations such as a
public radio station, Salvation Army, a Rotary Club, and Operation Unite; and
(4) may serve on a library board organized as a not-for-profit charitable,
educational, or civic entity, but may not be involved in lobbying efforts or in seeking to influence legislation
affecting the library.
Opinion:
A full-time judge asks a series of questions concerning speaking before certain groups, as well as memberships in and donations to various entities and organizations.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must not be swayed by partisan interests (see 22 NYCRR 100.3[B][1]). While a judge may participate in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see generally 22 NYCRR 100.4[A][1]-[3]), a judge’s judicial duties nonetheless “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must not publicly comment on any pending or “reasonably foreseeable” court proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]; 100.0[V] [defining an “impending proceeding”]). A judge also must not “directly or indirectly engage in any political activity,” unless an exception applies (22 NYCRR 100.5[A][1]). For example, a judge may not be a member of a political organization (see 22 NYCRR 100.5[A][1][b]) or make a contribution to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]). A judge may not serve as an officer, director, trustee, or non-legal advisor of a not-for-profit educational, religious, charitable, cultural, financial, or civic organization “if it is likely that the organization (i) will be engaged in proceedings that ordinarily would come before the judge, or (ii) if the judge is a full-time judge, will be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]). A judge may “assist such an organization in planning fund-raising,” but must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). A judge also must not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).
1. Gun Advocacy Groups and Groups of Sportsmen/Sportswomen
As the inquiring judge’s duties include serving as a firearms licensing officer, certain gun advocacy groups and sporting groups have invited the judge to appear and “talk generally” about the judge’s “philosophy” about pistol permits. The judge asks whether this is permissible.
Judges may speak about the law, legal system, or administration of justice, subject to generally applicable limitations on judicial speech and conduct (see e.g. Opinions 21-61; 19-120; 17-148). However, we have advised that judges’ “involvement in matters of ‘substantial public controversy’” is impermissible where it “may cast reasonable doubt on their ability to be impartial in performing judicial functions” (Opinion 18-72 [citations omitted]).
While we have not previously addressed the propriety of a judge explaining their “philosophy” concerning pistol permits, we nonetheless stated in Opinion 92-114/92-127:
The judge also asks about the propriety of responding to a letter seeking clarification as to the condition under which the judge would issue or amend gun licenses. In view of the public controversy about this matter, the judge should not state his or her criteria or what action he or she will or will not take in particular circumstances by way of a letter to a particular inquirer.
Likewise, in Opinion 18-72, we advised that a judge may not speak about gun laws at a politically sponsored gun policy forum. While the sponsor of that specific forum was a political organization, we nonetheless provided a second, independent reason why the inquiring judge could not accept the proposed speaking engagement. First, we recognized that gun violence “is one of the most politically controversial topics in the country today, and the need for and/or effectiveness of gun laws in preventing gun violence is surely at the core of the controversy” (id. [footnote omitted]). From that premise, we “conclude[d] the subject of gun laws, in the context of a gun policy forum, is inherently political and highly controversial” even if not sponsored by a political organization (id.).
Here, the judge is not being asked to put the judge’s views in writing, but instead to meet privately with pro-gun groups about the judge’s “philosophy” about pistol permits. In our view, the proposed meetings would, at the very least, create an appearance of impropriety. Under the circumstances, “the public would almost certainly infer that the advocacy groups are attempting to exert influence over court policy and the judge’s judicial decisions” (see e.g. Opinions 11-85 [judge may not participate in private meeting with representatives of local victims’ advocacy group, whose stated goal is to educate judge about importance of group and the group’s role in community, and to establish “mutually respectful relationship” between organization and court system”]; 10-13 [judge should not meet with municipal officials to discuss judge’s decision to dismiss parking tickets]).
The judge should therefore decline the invitation to address these groups.
2. American Civil Liberties Union (ACLU), Southern Poverty Law Center, Sierra Club and Planned Parenthood
The judge asks if it is ethically permissible to make contributions to and/or renew membership in the ACLU, Southern Poverty Law Center, Sierra Club and Planned Parenthood.
In Opinion 19-30, we defined a framework for a judge to evaluate an organization’s activities:
if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “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.” In essence, “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.” Nonetheless, a judge may be a regular member of such organizations, if they are not “political organizations” under the Rules.
Initially, in light of our prior decisions, we readily conclude that the ACLU, Southern Poverty Law Center, and Planned Parenthood are not “political organizations” under the rules (see e.g. Opinions 23-06; 14-117). The Sierra Club’s website describes the organization as “the most enduring and influential grass roots environmental organization in the United States.” Its mission appears to encompass environmental stewardship, education, and recreation, and it pursues certain aspects of its mission through lobbying and litigation, and other aspects through volunteer service and promoting the outdoors. Thus, we conclude the Sierra Club likewise has “substantial non-political purposes” and is not a “political organization” under the rules (see Opinion 23-06; 22 NYCRR 100.0[M] [defining the term]).
Our conclusion that these entities are not “political organizations” under Section 100.0(M) does not end the inquiry, as we have also advised that involvement in matters of “substantial public controversy” may cast reasonable doubt on a judge’s ability to be impartial in performing judicial functions (see Opinion 23-06). Nonetheless, a similar analysis applies at this second step. As these entities engage in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities, we conclude that the inquiring judge may maintain or renew regular membership in each of these four not-for-profit entities, and may contribute to any applicable non-political arm (see Opinions 23-06; 19-30; 17-70; 14-117). However, the judge may not be involved in the entities’ litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in these entities (see id.).
3. Ordinary Charitable Contributions and Memberships
The judge asks about involvement in various ordinary not-for-profit educational, religious, charitable, cultural, fraternal, and civic organizations. For convenience, we discuss these below in two subsections.
(a) Public Radio Station, Salvation Army, and Rotary Club
The judge asks if it is permissible to be a member of and/or contribute to a public radio station, the Salvation Army, and the Rotary Club.
Although a judge may not solicit funds, a judge generally may make charitable donations to not-for-profit organizations whose “activities and missions appear to be essentially charitable in nature” (Opinion 14-117). All three of these entities are well-established and permissible non-profits. We have previously advised that a judge may serve on the board of directors of a public radio station (see Opinion 99-183), although a judge may not participate in its on-air fund drives (see Opinion 14-08 [noting that the judge’s “name cannot be read on air in connection with the fund-raising drive”]). We have also opined that a judge may contribute to the Salvation Army, but may not solicit donations or serve as a “bell ringer” (Opinion 20-203). Similarly, we advised that a judge may be a member of a Rotary Club, assist in planning fund raising, and participate in the management and investment of the organization’s funds, but must not personally participate in the solicitation of funds or other fund raising activities (see Opinion 14-70).
Thus, we conclude that this judge may be a member of and/or make financial contributions to a public radio station, the Salvation Army, and a local Rotary Club. As always, the judge must abide by generally applicable limitations on judicial speech and conduct, including the prohibition on raising funds.
(b) Operation Unite
The judge also asks about contributing to or being a member of Operation Unite, a 501(c)(3) organization whose website describes its mission “to produce well rounded, progressive youth who will enter adulthood with a sense of direction, self-esteem and social consciousness and subsequently reinvest themselves into the community from which they come.” It supports programs in education, cultural performing arts, community activities and dance. Although the court does not make referrals to Operation Unite, the judge indicates the entity is willing to accept placement of defendants to serve community service sentences. We understand that Operation Unite works directly with the probation department on such matters.
We note the judge has asked only if it is permissible to be a regular member of and/or make financial contributions to Operation Unite. We conclude that such activities are permissible. Indeed, in Opinion 16-91, we said that a judge may continue to participate in activities organized by a not-for-profit organization, notwithstanding the possibility that the judge may inadvertently encounter defendants the judge previously sentenced to community service. As we advised (id. [citations omitted]):
a judge may generally “participate in any not-for-profit educational, religious, charitable, cultural, fraternal or civic organization,” subject to certain limitations. For example, a judge may not serve on the board of directors of a non-profit organization if he/she sentences defendants to community service there as an alternative to incarceration.
4. Serving on the Board of a Local Library
Finally, the judge asks if they may serve on the board of the local library, which is not a governmental entity, but is instead organized as a not-for-profit charitable, educational, or civic organization. This is permissible, although a judge must not be engaged in lobbying efforts or in seeking to influence legislation affecting the library (see Opinion 01-42; see also e.g. Opinion 03-38 [judge may not make public statement in support of a ballot proposition that would secure funding for the library]).