June 16, 2016
Digest: (1) A judge who is co-trustee of a relative’s charitable trust may authorize the trust to make charitable donations to not-for-profit entities that regularly appear before the judge, including legal services providers and agencies to which the judge may make referrals. Provided the judge can be fair and impartial, neither disclosure nor disqualification is required when a recipient of the trust’s charitable donations appears before him/her. (2) A judge as co-trustee of a charitable trust may participate in authorizing donations to not-for-profit organizations that seek to influence social policy, even where the organizations may seek to change the law through litigation, provided the contributions will not readily be perceived as improper political activity.
Rules: Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)-(f); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(E)(1); 100.5(A)(1); Opinions 15-210; 15-163; 15-77; 14-117; 14-95; 14-29; 13-185; 12-119; 05-71; 04-140; 03-45; 96-94; 95-131; People v Moreno, 70 NY2d 403 (1987).
The inquiring full-time judge is one of two co-trustees of a charitable trust established by the judge’s first-degree relative. The trust cannot lobby or make political contributions due to its charitable status, and the trustees do not wish to make donations at “tipping point” levels that would allow the trust to control a not-for-profit organization or direct its activities. The judge asks several questions about his/her ethical obligations and possible impacts on the trust’s ability to make charitable donations to not-for-profit organizations with tax-exempt status under 26 USC 501(c)(3)1 while the judge is a co-trustee.
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]). A full-time judge may serve as fiduciary “for the estate, trust or person of a member of the judge’s family” (22 NYCRR 100.4[E]) and may serve as a “trustee or non-legal advisor” of a not-for-profit charitable organization (22 NYCRR 100.4[C]), subject to certain limitations. In general, a judge’s extra-judicial activities must be compatible with judicial office, and must not cast reasonable doubt on his/her capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge also must disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” and in specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). Where objective standards do not mandate disqualification, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
1. Charitable Donations to Entities that Appear Before the Judge
The judge asks if he/she may participate as a co-trustee in authorizing the trust to make charitable donations to not-for-profit legal services providers or agencies regularly appearing before the judge and/or to which the judge may make referrals.2 The judge further asks if he/she must disclose or disqualify when recipients of the trust’s donations (or their employees) appear as attorneys, witnesses, or complainants.
As summarized in Opinion 15-163 (citations omitted):
As a general rule, the Committee has advised “it is of no ethical consequence for a judge to make a monetary contribution to a non-profit organization..., even if the organization appears in the judge’s court.” Thus, the judge may make such contributions without disclosure or disqualification, provided they are “relatively modest and not essential to the operation of [the] organization.” In other words, a judge’s charitable contribution does not “reasonably” call into question the judge’s ability to be fair and impartial, unless it is “a particularly large contribution that is essential to sustain the operations of the particular agency.”
Thus, for example, a judge may make charitable contributions to the Legal Aid Society (see Opinions 04-140; 95-131). A judge also may purchase tickets and attend a fund raising dinner for an organization which supports victims of child abuse and helps prepare them for court appearances, where the event itself is not “so extraordinarily one-sided in nature that [the judge’s] attendance would necessarily cast doubt on” the judge’s impartiality (Opinion 13-185). Such donations do not ordinarily require disclosure or disqualification.
The Committee sees no reason to hold this judge to a different standard with respect to charitable contributions, merely because he/she is acting as co-trustee of a trust. Accordingly, the judge may permit the trust to donate to not-for-profit legal service providers and agencies that appear before him/her, and may personally participate in the decision-making process. Thereafter, provided the judge can be fair and impartial, neither disclosure nor disqualification is required when a recipient of the trust’s charitable donations appears before him/her.3 Similarly, the judge may preside in matters involving an entity through which the trust’s charitable donations have passed.
2. Charitable Donations to Entities that Advocate for Social Policy Changes
The judge asks if he/she may allow the trust to donate to charitable organizations with tax-exempt status under 26 USC 501(c)(3) that either assist individuals with end-of-life decisions and advocate for changes in the law through litigation and legislative reform, or advocate for changes in the law in other social policy areas, such as gun control. The judge states the trust will not designate its charitable donations for litigation or otherwise direct any recipient to use the monies for litigation.
As the Committee has advised (Opinion 14-117):
The fact that a not-for-profit organization devoted to the improvement of the law, the legal system and the administration of justice may also be involved in some activities in which a judge may not personally participate does not necessarily preclude a judge from making a financial contribution to the organization.
Indeed, a judge may make charitable donations to not-for-profit organizations that, among other activities, seek to change the law through litigation (see Opinions 14-117 [Southern Poverty Law Center and the NAACP]; 03-45 [New York Civil Liberties Union]; 15-77 [Planned Parenthood]) or otherwise advocate for social justice (see Opinion 14-117 [Highlander Research and Education Center]). Moreover, a judge may contribute to a non-partisan feminist coalition “which advocates for and influences legislative and social policy affecting women and children,” even though he/she may not hold a leadership role in the coalition (Opinion 14-29).
In making such contributions, of course, a judge must be careful not to contribute to an organization’s political arms, if any (see e.g. Opinion 15-77). A judge also must not contribute to not-for-profit organizations that are essentially “political organizations” within the meaning of the Rules, as such contributions “would readily be seen as impermissible political activity” (Opinion 14-117 [contributions to Emily’s List and MoveOn.Org]; see also Opinion 14-95 [judge may not contribute to a not-for-profit organization which “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office,” as it “is a ‘political organization’ for purposes of the Rules”]).
The Committee believes similar principles apply to a judge’s participation as a co-trustee in making decisions concerning a charitable trust’s donations to not-for-profit organizations that seek to influence social policy concerning end-of-life decisions or gun control. Ordinarily, such charitable donations are unlikely to cast reasonable doubt on a judge’s impartiality or interfere with the proper performance of judicial duties (see e.g. Opinion 04-140). While the judge and his/her co-trustee already strive to avoid any political activity that would jeopardize the trust’s charitable status, the Committee notes this is also an ethical obligation for the judge (see e.g. Opinions 15-77; 14-117; 22 NYCRR 100.5[A]).
3. “Recusal” from Decisions on Charitable Donations
Finally, in the alternative, if the judge may not participate in the above-described funding decisions, the judge asks whether he/she may simply “recuse” or “insulate” him/herself from the decision, rather than effectively precluding the trust from making those donations (cf. Opinion 96-94 [a law firm may not make political contributions, if one of its partners or associates is a part-time judge]). As the question now appears to be moot and/or speculative, the Committee declines to answer it (see e.g. Opinions 12-119; 05-71). Furthermore, whether the judge’s co-trustee has the power to act alone on funding decisions in instances where the judge may be ethically precluded from participating primarily raises a legal question on which the Committee cannot comment (see Judiciary Law § 212[l]).
1 Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity” (Opinion 15-210).
2 In some instances, the funds pass through an entity that appears before the judge, even though the ultimate recipient of the trust’s donation does not.
3 The co-trustees currently do not wish to make donations at “tipping point” levels; if this changes, the judge should seek further guidance (cf. Opinion 04-140).