Opinion 23-06

March 23, 2023

Digest:         A judge may continue to be a life member of the National Rifle Association.

Rules:          22 NYCRR 100.0(M); 100.0(V); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(b), (h); Opinions 20-199; 20-128; 19-30; 18-72; 17-70; 17-38; 15-227; 15-77; 14-117; 14-95; 98-137; 98-101.

Opinion:

         A new judge has a lifetime membership in the National Rifle Association (NRA), purchased before assuming judicial office. The NRA’s website suggests that it is a not-for-profit organization that engages in extensive litigation, lobbying and political activity. The website explicitly states that membership dues and contributions are not tax deductible. The judge reports that it is possible to resign from membership, but the lifetime membership does not expire and cannot be transferred or refunded. Accordingly, the judge asks if it is necessary to resign as a member of the NRA.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). 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 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 (22 NYCRR 100.3[B][8]; 100.0[V] [defining “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]). Beyond this general prohibition, the rules directly forbid “being a member of a political organization other than enrollment and membership in a political party” (22 NYCRR 100.5[A][1][b]) and “making a contribution to a political organization” (22 NYCRR 100.5[A][1][h]). In turn, 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]).

General Principles

         As we observed in Opinion 17-38, “the starting point for an inquiry about political activity is one of prohibition, with discrete and narrow exceptions drawn only after a careful analysis of all of the factors informing the decision.” Thus, we advised (id.):

Section 100.5 starts with an across-the-board prohibition of any direct or indirect political activity by judges before delineating three discrete exceptions to the blanket prohibition. Accordingly, the ensuing recitation of examples of specific prohibited political activities can by no means be seen as all-encompassing or comprehensive, lest the broad reach of the prohibition be eviscerated.

While recognizing certain exceptions when a judge’s personal interest is directly involved, we have been “unwavering in insisting upon the narrow-tailoring of these exceptions in order to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust” (id.).

         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.

Threshold Question: Is the NRA a “Political Organization” for Judicial Ethics Purposes?

         The threshold question in determining whether a judge may be a member of a not-for-profit entity that is legally permitted to engage in political activity is whether the entity is deemed a “political organization” under the rules. If so, a judge may not be a member (see 22 NYCRR 100.5[A][1][b]). Reading Section 100.0(M) somewhat more broadly than its literal language, we have said that “a judge may not join an entity primarily engaged in substantial political activity, including support for specific candidates” (Opinion 20-128; accord e.g. Opinion 17-70).

         We have often looked to the underlying “primary purpose” of the organization as demonstrated in its declared mission and public activities (cf. 22 NYCRR 100.0[M]; Opinion 14-117 fn 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”]). Thus, in Opinion 14-95, we consulted an organization’s website which detailed that it sought to “promote individuals with a particular viewpoint on abortion for election and appointment to public office at every level of government.” We determined that because a “primary mission” involved substantial political activity in support of specific candidates, it qualified as a “political organization” and the judge could not be a member (id.). However, at times we have left it to the judge to determine whether an entity is a “political organization” under the rules, as “we are neither an adjudicative nor an investigative body” and the judge is in the best position to assess whether the organization “engages in partisan political activity” (Opinion 20-128).

         When we do make this determination for the inquiring judge, we often name the organization so that all judges will have the same guidance. For example, our prior opinions have established that entities such as Emily’s List, Indivisible, J Street, and MoveOn.org are “political organizations” under the rules (see Opinions 18-72; 17-70; 17-38; 14-117), so that membership and contributions are not permitted (see 22 NYCRR 100.4[A][1][b], [h]).

         Conversely, we concluded that judges may maintain regular membership in entities such as the American Israel Public Affairs Committee, New York Civil Liberties Union (NYCLU), and Planned Parenthood and make contributions to their non-political arms (see Opinions 17-70; 15-227; 15-77; 14-117; 98-101). Although some of these entities may engage in extensive political activity (see e.g. Opinion 15-227), a key distinction highlighted in Opinion 17-70 is whether the entity “appear[s] to have substantial non-political purposes.”

         In the public perception, Planned Parenthood, NYCLU and the NRA engage in a similarly broad range of activities. Thus Opinion 98-101, which permits membership in Planned Parenthood and NYCLU, is particularly illuminating here. In that opinion, we focused on the fact that both entities “engaged in a variety of activities that a judge could readily be associated with (e.g. education about the Bill of Rights, women's health counseling, etc.)” in determining that membership in those entities would not constitute impermissible political conduct (id.).

         Here, too, while the NRA’s website certainly emphasizes its political activism, that is not its sole purpose. The website also details the NRA’s substantial interests in promoting gun safety and gun education. Given the wide scope of the NRA’s non-political activities in education and safety, we decline to deem the NRA as a group whose “principal purpose ... is to further the election or appointment of candidates to political office” (22 NYCRR 100.0[M]).

Effect of NRA’s Involvement in Substantial Public Controversy

         Our conclusion that the NRA is not a “political organization” 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 e.g. Opinions 20-199; 20-128). Thus, we have said judges must avoid inserting themselves “unnecessarily into public controversy” in their extra-judicial activities (id.). For example, if “[v]irtually all” of an organization’s activities involve “the adoption, advocacy and pursuit of policies and positions in matters that are of substantial public controversy, many of which, in whole or in part, eventuate in litigation,” then a judge cannot be a member (see Opinion 98-137).

         By contrast, where a not-for-profit organization may be involved in some impermissibly controversial issues, but also has substantial activities in which a judge may ethically participate, we have drawn a middle course to permit some participation (see Opinion 20-199). Thus, in Opinion 98-101, we concluded that while there was no per se prohibition against membership in Planned Parenthood or the NYCLU, a judge must “take care that such membership does not involve the judge in being associated with matters that are the subject of litigation or public controversy. Further, should either organization appear in the judge’s court, there should be recusal, subject to remittal” (id.). We further elaborated on this view in Opinion 17-70 (citations omitted) as follows:

It is well-settled that “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.” The Committee has thus advised that a judge may donate to such organizations and join as a regular member, with certain limitations. However, a judge who joins such a group may not be involved in its litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in the entity... 

         We endorse the same discretionary cautions here. The judge must, of course, avoid impermissible political activity and may not assume a leadership role in the NRA. However, nothing currently before us suggests that mere membership in the NRA associates the judge with matters of controversial lobbying, advocacy or litigation sufficient to implicate the integrity of the judiciary and require the judge’s resignation. Accordingly, the judge need not resign their lifetime membership in the NRA.