Joint Opinion 15-210/09-56
Amended October 18, 2018 and Re-issued October 26, 2018
Digest: (1) A judge may join a local chapter of the Shooters Committee on Political Education only if, at the time of joining the entity, he/she is satisfied after reasonable inquiry that the local chapter and the national entity (a) do not align themselves with any political party, (b) do not endorse or promote any candidates for elective office, and (c) have the primary purpose of educating the public about firearm ownership, Second Amendment rights and legislation.
(2) Where membership is permitted, the judge may join as a regular member, provided (a) such membership does not involve the judge in organizational litigation or publicly associate him/her with organizational positions on matters of public controversy, (b) the judge does not assume a leadership position in the organization, (c) the judge disqualifies him/herself, subject to remittal, should the organization appear in the judge’s court, and (d) the judge does not contribute to any political action committee or other political arm of the organization.
(3) A judge who has joined a local chapter of SCOPE after making reasonable inquiry to ensure it is not a political organization within the meaning of the Rules Governing Judicial Conduct may ordinarily rely on that initial assessment. However, if he/she becomes aware of facts suggesting that the entity has become politically active, the judge must either immediately resign or make further inquiries to assure him/herself that the local chapter and the national organization are not political organizations within the meaning of the Rules.
Rules: 26 USC 501(c)(3)-(4); 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.4(C)(3); 100.5(A)(1)(b); Opinions 15-77; 14-117; 14-95; 14-29; 09-70; 09-56; 98-101.
In Inquiry 09-56, a judge asked if he/she may continue membership in a local chapter of Shooters’ Committee on Political Education (SCOPE), a not-for-profit organization that is devoted entirely to gun-related issues, and whether he/she may serve on its board. According to information the judge submitted, the local chapter’s mission was to (1) inform members about anti-gun/gun owner legislation; (2) stop anti-gun/gun owner legislation in New York State; and (3) educate the public on the positive aspects of firearm ownership, and their Second Amendment rights. The judge in Inquiry 09-56 stated that “SCOPE is a 501 C 4 not for profit corporation, it is political in nature but does not endorse any candidates of any party.” In Inquiry 15-210, a full-time judge again asked if he/she could remain a member of a local chapter of SCOPE. This second judge directed the Committee’s attention generally to SCOPE’s website. The “About” page identified SCOPE as a “statewide 501(c)(4) organization dedicated to preserving the 2nd amendment rights for the residents of New York State.” The judge again stated, and SCOPE’s mission statement and current website confirmed, that SCOPE did not align itself with any political party nor did it endorse or promote any candidates for elective office. Instead, SCOPE’s primary purpose was apparently to educate the public about firearm ownership, Second Amendment rights and legislation.
Earlier this year, however, we have become aware that at least one local chapter of SCOPE is circulating candidate questionnaires, presumably so that candidates may seek the chapter’s endorsement. We therefore amend and reissue these two prior opinions as Joint Opinion 15-210/09-56 to clarify a judge’s obligations on becoming aware that a 501(c)(4) not-for-profit entity which has hitherto eschewed political activity has become involved in supporting or opposing candidates for public office.
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]). Although a judge may generally be a member of “an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit” (22 NYCRR 100.4[C]), a judge may not be “a member of a political organization,” other than enrollment and membership in a political party (22 NYCRR 100.5[A][b]). The term “political organization” includes a political party or a political club, but the definition also encompasses a group whose “principal purpose ... is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).
Thus, the initial question is whether SCOPE is a “political organization” within the meaning of the Rules. Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity” (Opinion 14-117 n.2), whereas not-for-profit entities such as SCOPE, which are exempt under 26 USC 501(c)(4), may engage in “some partisan political activity” without jeopardizing their tax-exempt status (Opinion 14-117 n.5).
However, “[t]he fact that [501(c)(4)] organizations are legally permitted to engage in some political activity does not necessarily resolve the question of whether they are ‘political organizations’ under the Rules” (Opinion 14-117 n.5). It is also necessary to consider the organization’s “principal purpose” (22 NYCRR 100.0[M]) as reflected in its mission and public activities (see Opinion 14-117 n.2 [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”]).1
In some instances, the Committee has concluded a particular 501(c)(4) organization is a “political organization” under the Rules. Thus, for example, the Committee has advised that a judge may not be a member of a 501(c)(4) organization which is primarily engaged in substantial political activity in support of specific candidates (see Opinion 14-95 [organization that “seeks to promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government”]). Similarly, the Committee has advised that MoveOn.org’s 501(c)(4) educational advocacy arm is a “political organization” under the facts presented, as its primary purpose appears to involve supporting its own political action committee (see Opinion 14-117 [concluding that the educational arm’s stated purpose “to ‘unleash progressive people power by encouraging and supporting MoveOn members and other progressives to step up as the leaders of their own campaigns for social change’” works essentially “to support certain candidates based upon their views of certain political issues”]).
A judge must not join his/her local chapter of SCOPE without making reasonable inquiry at the time he/she is considering becoming a member, to verify that the local chapter and the overall national entity do not align themselves with any political party nor do they endorse or promote any candidates for elective office. A reasonable inquiry includes (1) asking an officer of the local chapter if they support or oppose any candidates or otherwise engage in political activity and (2) reviewing SCOPE’s mission statement and current website. The judge must also satisfy him/herself as to whether or not SCOPE’s primary purpose is to educate the public about firearm ownership, Second Amendment rights and legislation. If this is true of SCOPE and the specific local chapter the judge wishes to join, the Committee concludes that the local chapter of SCOPE is not a “political organization” within the meaning of the Rules (22 NYCRR 100.0[M]; 100.5[A][b]).
The second question, whether a judge may maintain membership in a not-for-profit organization that engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities, is well-settled. The Committee has advised that a judge may contribute to such organizations and join as a regular member, subject to certain limitations (see Opinions 15-77 [Planned Parenthood]; 14-29 [“non-partisan feminist coalition” which advocates for and influences legislative and social policy affecting women and children ]; 09-70 [Birthright]; 98-101 [Planned Parenthood and NYCLU]). For example, a judge who joins such an organization 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 (see Opinions 15-77; 14-29; 09-70; 98-101).2
We thus conclude that judges may initially join a particular local chapter of SCOPE as regular members, only if (1) they are satisfied at the time of joining that their local chapter of SCOPE is not a “political organization” within the meaning of the Rules as discussed above, (2) such membership does not involve the judge in organizational litigation or publicly associate him/her with organizational positions on matters of public controversy. Where permitted to join, the judge still may not assume a leadership position in the organization. Furthermore, “as long as the judge maintains membership in SCOPE, the judge must disqualify him/herself, subject to remittal, should the organization appear in the judge’s court” (Opinion 09-56). As with other such entities, the judge should not contribute to a “political action committee or other political arm of the organization” (Opinion 15-77).
Finally, we must address the possibility that a 501(c)(4) entity that formerly eschewed political activity may eventually start endorsing or opposing candidates for political office. Where a judge has made reasonable inquiry on joining the organization to ascertain that the local chapter is not a “political organization” under the rules and our prior opinions, we believe the judge ordinarily may rely on this earlier assessment and need not continually re-inquire about the entity’s activities. However, if a judge becomes aware of facts that suggest a change of course – for instance, if the judge sees communications from the entity supporting or opposing particular candidates, or if the judge becomes aware that the entity is circulating candidate questionnaires – then the judge may no longer rely on this earlier assessment. Instead, the judge must either immediately resign or make further inquiries to assure him/herself that the local chapter and the national organization are not “political organizations” as outlined above.
1 Tax-exempt status under 26 USC 501(c)(3) “tends to suggest that an organization is not engaged in partisan political activity” (Opinion 14-117 n.2).
2 The Committee has explained that “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” (Opinion 14-29).