May 4, 2017
Digest: A full-time judge (1) may attend informational assemblies and leadership meetings organized by a not-for-profit umbrella entity which encompasses the judge’s religious institution, even if pending litigation is on the agenda, provided the judge does not comment on the litigation; and (2) may invite his/her fellow congregants to attend such assemblies and leadership meetings.
Rules: 26 USC § 501(c)(3); 22 NYCRR 100.0(M); 100.2; 100.2(C); 100.3(B)(8); 100.4; 100.4(A)(1), (3); 100.4(C)(1); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.5(A)(1); Opinions 17-38; 15-210; 15-100; 15-77; 14-117; 14-29; 12-22; 10-137; 09-70; 09-57; 98-101.
A full-time judge belongs to a religious institution that is affiliated with two umbrella entities, Manhattan Together (MT) and Industrial Areas Foundation. The judge says these two entities “and all affiliated organizations are 501(c)(3) not-for-profit corporations,” such as religious institutions and other community-based non-profits. MT describes itself as “broad-based, multiracial, non-partisan, and grassroots,” and its purpose “is to organize people from our member institutions to engage in public decision-making … to improve the quality of life in their communities, and strengthen their member institutions” (http://www.mt-iaf.org).1 The judge emphasizes that MT “is not partisan, does not endorse candidates, and does not participate at all in electoral politics.”
The judge would like to become involved with two ongoing MT initiatives, known as “leadership meetings” and “assemblies.” At the leadership meetings, clergy and lay leaders from member organizations meet monthly with certain MT employees who are full-time community organizers, to develop issues for proposed action in areas such as education, public housing, and neighborhood safety. Participants help “identify and recruit” other potential leaders from within their congregations. They choose action items by consensus after consultation with their fellow congregants; prior topics have included remediating mold in public housing, reducing gun violence, and educating non-citizen residents about their legal rights and obligations. MT then pursues these issues by meeting with elected and appointed officials, and by organizing large, informational assemblies several times a year for members of its affiliated organizations, the press, and other interested observers. Attendees of MT’s informational assemblies, unlike the leadership meeting participants, have an essentially passive role. Public officials are invited to the assemblies to address issues of concern to MT’s constituents, as noted above, but the assemblies are “scripted” to preclude audience participation. Finally, we note the leadership meetings and assemblies are not fund-raisers, and there is no charge for admission or participation by members of MT’s constituent organizations.
The judge asks if he/she may attend MT’s assemblies and the leadership meetings, and invite his/her fellow congregants to participate. The judge further asks if the answer changes depending on whether MT’s federal litigation is on the agenda.2
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge may engage in extra-judicial activities, subject to limitations (see generally 22 NYCRR 100.4). For example, a judge’s extra-judicial activities must not cast reasonable doubt on the judge’s impartiality (see 22 NYCRR 100.4[A]) and must not be incompatible with judicial office (see 22 NYCRR 100.4[A]). A judge generally may be a member of a not-for-profit charitable, religious, or civic organization (see 22 NYCRR 100.4[C]). However, a full-time judge may not serve as an officer, director, trustee or non-legal advisor of an organization that will likely (i) “be engaged in proceedings that ordinarily would come before the judge” or (ii) “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][i]-[ii]). A judge must not personally solicit funds (see 22 NYCRR 100.4[C][b][i]) or permit use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]). A judge also must not publicly comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]), must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]), and, if a full-time judge, must not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge’s interests (see 22 NYCRR 100.4[C]).
One preliminary question is whether MT is a political organization and/or whether its assemblies or leadership meetings are impermissibly political events. The fact that an organization is afforded tax exempt status under 26 USC § 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity (see Opinion 14-117 fn 2). Still, federal tax-exempt status is not determinative; 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” (see Opinion 14-117). On the facts presented, we conclude MT and the described events are not impermissibly political within the meaning of the Rules and prior opinions, as they do not support or oppose any political party or candidate for election and are not affiliated with any political organization; the judge’s participation is unlikely to involve the judge in impermissible political activity; and the judge’s participation will not insert him/her unnecessarily into public controversy (see generally Opinions 17-38; 14-117; 22 NYCRR 100.0[M] [defining “political organization”]).
Additionally, a judge must not become involved in a non-profit organization’s litigations or publicly associate him/herself with organizational positions on matters of public controversy (see Opinions 15-210; 15-77; 14-29; 09-70; 98-101). However, a judge is not necessarily precluded from ordinary membership in a non-profit organization that engages in some activities forbidden to judges, as long as the judge avoids participating in those specific activities (see e.g. Opinions 15-210; 14-29; 09-70). Where membership is permissible, the judge may also attend the organization’s meetings, subject to generally applicable restrictions on judicial speech and conduct (see e.g. Opinion 14-29).
We therefore conclude the judge may attend MT’s assemblies, at which attendees listen to presentations or discussions about community improvements. Moreover, attendance is permissible even if the speakers will discuss MT’s pending litigation. Of course, the judge must not comment on the case, whether at the assemblies or elsewhere, while the matter remains “pending or impending” (22 NYCRR 100.3[B]; see also e.g. Opinion 15-100 [discussing the rule’s extensive reach]). As the assemblies are intended to disseminate information and are not fund-raisers or membership solicitation events, the judge may invite his/her fellow congregants to attend them, regardless of whether MT’s litigation is on the agenda. Encouraging other members to attend these free events and receive information about proposed community improvements does not fall within any prohibited judicial activity.
MT’s leadership meetings raise a separate threshold question, as to whether the judge’s proposed involvement will make him/her an “officer, director, trustee or non-legal advisor” of MT, which is impermissible for a full-time judge if MT “regularly engages in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]). As described, we conclude MT’s current level of involvement in post-decree litigation in a single federal case does not constitute “regularly engag[ing] in adversary proceedings” within the meaning of the rule (id.). Moreover, to the extent that MT’s leadership meetings primarily seek to nurture new leaders within its constituent members’ organizations, we believe that participating in MT’s leadership meetings as described will not necessarily make the judge a “non-legal advisor” of MT itself (id.).
Accordingly, we conclude the judge may participate in MT’s leadership meetings whose purpose is to develop new leaders, obtain information about issues of community concern, arrive at a consensus on how to advocate on issues of mutual concern among the member organizations, and may invite his/her fellow congregants to participate as well. As a reminder, a judge may recruit volunteers only from within his/her own organization, i.e. from other current members of the congregation (see e.g. Opinions 12-22; 10-137; 09-57). Again, the judge must not participate in any discussion of MT’s ongoing litigation, should the topic arise during the leadership meetings (see 22 NYCRR 100.3[B]).
1 For completeness, we note that Industrial Areas Foundation similarly “partners with religious congregations and civic organizations at the local level to build broad-based organizing projects, which create new capacity in a community for leadership development, citizen-led action and relationships across the lines that often divide our communities” (http://www.industrialareasfoundation.org).
2 The initial lawsuit concerning mold in public housing was resolved by consent decree in December 2013, but litigation over enforcement of the decree has resulted in ongoing court oversight of the housing authority.