Opinion 24-64

March 14, 2024

Digest:  A judge who is not in his/her window period may not attend an event sponsored by Voters of Tomorrow.

Rules:   22 NYCRR 100.0(M); 100.0(Q); 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(g); 100.5(A)(2); Opinions 24-60; 23-06; 19-129; 18-72; 17-70; 13-22; 07-211; 88-136.

Opinion:

          A judge asks if it is ethically permissible to attend a fund-raising event for “Voters of Tomorrow,” a 501(c)(4) organization that seeks to “harness the political power of Gen Z, deciding elections and legislation through 2024 and beyond,” with the goal of making Gen Z “an unstoppable force in American politics and government” (https://votersoftomorrow.org/about-us/ [visited Apr 10, 2024]).  The judge would be attending for free as the guest of a friend and would not make any contributions.  The judge is not within his/her window period for election to judicial office.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and thus a judge’s extra-judicial activities must be compatible with judicial office (see generally 22 NYCRR 100.4[A][1]-[3]).  A judge who is a candidate for elective judicial office may participate in his/her own campaign as permitted by the rules during a defined “window period” (see 22 NYCRR 100.0[Q]; 100.5[A][2]).  A judge may not otherwise “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).  Among other prohibitions, a judge must not “attend[] political gatherings” (22 NYCRR 100.5[A][1][g]).  The rules define a “political organization” as 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]).

          A judge who is not in his/her window period may not attend an event sponsored by a political organization, even for a non-political purpose (see e.g. Opinions 24-60 [student chaperone at legislative caucus weekend conference]; 07-211 [holiday party financed by friend’s campaign funds]; 88-136 [guest speaker about the court at political club]).  Indeed, the prohibition applies even if the event itself is apparently non-partisan or bi-partisan (see Opinions 19-129 [non-partisan purpose to introduce children to civic engagement and educate them about the courts]; 13-22 [bi-partisan sporting event to improve public image of both parties]).

          Because entities organized as tax-exempt “social welfare organizations” under 26 USC 501(c)(4) may engage in political activity, they sometimes qualify as “political organizations” for purposes of the Rules Governing Judicial Conduct (see Opinion 23-06 [“a key distinction … is whether the entity ‘appear[s] to have substantial non-political purposes’”]).  Where such an entity is deemed a political organization, a judge or quasi-judicial official may not attend its events outside of the applicable window period.  For example, in Opinion 18-72, we considered a grassroots organization called “Indivisible,” which sought to “defeat the Trump agenda, elect progressive leaders, and realize bold progressive policies.”  We advised that the group was a political organization and a judge who is not in his/her window period may not attend its events (id.).  In Opinion 17-70, we likewise said a court attorney-referee may not attend events sponsored by “J Street,” a group endorsing “political candidates who support Israeli security and peace in the Middle East” (see generally Opinion 23-06 [“our prior opinions have established that entities such as Emily’s List, Indivisible, J Street, and MoveOn.org are ‘political organizations’ under the rules”]). 

          We similarly conclude that Voters of Tomorrow is a “political organization” under Section 100.0(M).  Its primary activity appears to be supporting candidates for elected office with reference to the perceived interests of “Gen Z” voters.  For example, its “2022 Cycle Impact Report” (visited Apr 10, 2024) characterizes Republicans as “car[ing] little” about issues that matter to Gen Z (id. at 3) and takes credit for helping “prevent a red wave from taking over Congress” (id. at 2).  The organization “endorsed 70 candidates in the midterm cycle, with 41 ultimately being elected to a range of different offices, from U.S. Senator to Governor to state Attorney General” (id. at 7).  It also “identified 29 Congressional districts where the youth vote would be most critical” to determining whether a desired coalition would control the House of Representatives (id.).  The same report credits the organization’s efforts with “help[ing] Democrats not only retain control of the Senate, but expand their Senate majority” and “defy political history” (id. at 2). 

          As it appears that the organization’s primary purpose is “further[ing] the election or appointment of candidates to political office” (22 NYCRR 100.0[M]), we conclude that Voters of Tomorrow is a “political organization” under the rules.  As the inquiring judge is not in his/her window period, he/she may not attend this fund-raiser or other events sponsored by this organization.