Opinion 07-52

April 19, 2007

Digest:         A judge should not serve on the crime-prevention subcommittee of a city program designed to revitalize crime-ridden neighborhoods when, under the circumstances presented, the program as a whole could be perceived as a law-enforcement program, and could also result in cases which would frequently come before the judge’s court.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.4(A); 100.4(C)(3); Opinions 00-18 (Vol. XIX); 99-21 (Vol. XVII); 97-108 (Vol. XVI); 96-65 (Vol. XIV); 90-25 (Vol. V).

Opinion:

         A City Court judge asks whether he/she may accept a mayoral appointment to serve on the Prevention, Intervention and Treatment Subcommittee of the “City Center Weed and Seed” program. “Weed and Seed,” as described in the Mayor’s letter of appointment, is “a community-based, law enforcement strategy (funded by the U.S. Department of Justice) that links ‘weeding’ activities to ‘seeding’ activities to reclaim and revitalize crime-ridden neighborhoods.” The Mayor states that in order to make the strategy more effective, the goal is to have more residents participate and to have“efforts between law enforcement officials and community agencies . . . better coordinated.” The Mayor further states that “vital partners have made renewed commitment to this powerful public safety strategy, including my office, the [City] Police Department, the District Attorney’s Office, and downtown residents and organizations.”

         The program’s policies and procedures state that the subcommittee to which the judge would be appointed “will develop, monitor, promote and manage crime prevention programs focusing on drug sales, drug use, and prostitution that will intervene and treat ‘root’ causes of crime . . . ” Other subcommittees include a subcommittee on community policing and a subcommittee on law enforcement, consisting of members from local, state and federal law enforcement agencies, which “establishes police and prosecutorial strategies to achieve crime reduction and responds to emerging crime problems in the Center City Weed and Seed target area.”

         The subcommittees are overseen by a Steering Committee, the program’s “governing body.” Each subcommittee “will develop strategies approved by the Steering Committee” and will submit a report of its activities at each scheduled Steering Committee meeting. The Steering Committee consists of representatives of two U.S. Attorney’s Offices, the Drug Enforcement Administration, the District Attorney’s Office, the Police Department, other city agencies, the NAACP, business organizations, and civic anti-crime agencies. There is no Legal Aid, Public Defender, or other defense bar representative.

         As section 100.4(C)(3) of the Rules Governing Judicial Conduct provides: “A judge may be a member or serve as an officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice . . . “ (22 NYCRR 100.4[C][3]), only if the activity does not “(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and is not incompatible with judicial office.” 22 NYCRR 100.4(A). This Committee has stated that, subject to these limitations, a judge may serve on the advisory board of a neighborhood crime prevention program (Opinion 90-25 [Vol. V]) and on a Prevention Partnership Board, affiliated with a coalition of agencies for the prevention of juvenile delinquency. Opinion 99-21 (Vol. XVII).

         A judge may not, however, participate in a program that might be perceived as a law enforcement program. Opinion 96-65 (Vol. XV) (prohibiting a judge from joining a state board whose duties include planning specialized law enforcement units and prosecution services to prevent auto theft and insurance fraud); Opinion 97-108 (Vol. XVI) (prohibiting a judge from accepting appointment by a County Executive to a Judicial Crime Prevention Commission whose functions involve “recommendations as to legislation, general social policy, funding and, possibly, law enforcement activities and policies, and providing that “this connection with law enforcement activities and policies...renders such service incompatible with judicial office”).

         If the “Weed and Seed” program were limited to the prevention function of the judge’s subcommittee, without the program’s law enforcement function, the judge’s participation might be permissible. Under the circumstances described, however, the two aspects of the program are so closely interrelated, and the law enforcement function so predominant, that the judge may not accept the appointment. “ Weed and Seed” is described publicly by its organizer, the Mayor, as a “law enforcement strategy.”

         The program is expressly designed to increase the coordination between “law enforcement officials” and “community agencies.” The governing body (the Steering Committee) to which the judge’s subcommittee reports and which will approve the subcommittee’s strategies has considerable law enforcement participation, without any legal defense organizations. In this context, “Weed and Seed” could be seen primarily as a law enforcement program, and the judge’s participation may well compromise the “independence of the judiciary,” (22 NYCRR 100.1), as well as cast doubt on the “impartiality of the judiciary” (22 NYCRR 100.2(A).” See Opinion 96-65, supra.

         Moreover, the program’s subcommittee on law enforcement “establishes police and prosecutorial strategies,” and “responds to emerging crime problems,” in a section of the city that is within the geographical jurisdiction of the judge’s court. These activities could result in frequent cases in the judge’s court; and in such cases “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) because of the “close institutional connection” between the two subcommittees. See Opinion 00-18 (Vol. XIX). This is yet another reason why the judge’s participation in the program would be inappropriate.