Opinion 15-203

December 3, 2015

Digest:         A full-time judge who presides in a treatment court may serve on a legislator’s advisory committee on drug abuse, subject to certain limitations.

Rule:            22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(C)(1); 100.4(C)(2)(a); 100.5(A)(1)(d)-(e); Opinions 15-100; 13-17; 11-134; 11-41; 06-137; 89-132.

Opinion: 

         A full-time judge who presides in a drug treatment court asks if he/she may serve on a legislator’s advisory board on abuse of a specific category of illegal drugs.¹ The advisory board consists of “stakeholders from different parts of our community” and is intended “to assist [the legislator] in developing effective State policies and strategies and to make recommendations to [him/her] on how to improve existing services.” The legislator hopes to “eradicate” heroin/opiod abuse with a focus on “prevention, recovery and enforcement” and thus seeks “recommendations on how to improve the existing system of services to help those in need, including effective intervention, public education and advocacy as well as stronger legislation.”

         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]). Generally, a full-time judge must not appear at a public hearing before a legislative official except on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]) and must not serve on a governmental committee concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]).

         The Committee has advised that a full-time judge may not serve on a County Youth Board’s advisory committee which seeks “to promote ‘healthy outcomes’ and ‘positive development’ in youth” (Opinion 06-137) or on a federal legislator’s advisory committee which recommends candidates for appointment to military academies (see Opinion 89-132). In both instances, the position was primarily concerned with issues of fact and policy unrelated to the improvement of the law, the legal system or the administration of justice (see Opinions 06-137; 89-132; 22 NYCRR 100.4[C][2][a]).

         By contrast, a court attorney-referee may accept appointment to a county legislature’s citizen’s advisory committee on domestic violence, where the committee’s purpose is “to solicit advice and recommendations from the community with respect to domestic violence and to periodically report to the county legislators” (see Opinion 11-41). The Committee there concluded such issues were related to the law, the legal system and the administration of justice (see id.; 22 NYCRR 100.4[C][2][a]). Thus, the referee could serve, provided his/her participation in the committee does not interfere with his/her regular court duties and the committee’s membership is not so imbalanced as to cast doubt about the inquirer’s fairness and impartiality (see Opinion 11-41).

         As described, the advisory board will focus on improving the law and the administration of justice concerning individuals suffering from drug addiction, and is not likely to be perceived as a law enforcement program. Like the treatment court in which this judge presides, the advisory board will take a balanced or holistic approach to assist addicts, and it will also explore how existing laws can be improved. Since the advisory board includes “stakeholders from different parts of our community,” the Committee assumes the board will include a range of individuals and/or organizational representatives, so that it does not favor a particular ideology or viewpoint.

         Accordingly, this judge may serve on the legislator’s advisory board, provided the board’s membership is not so imbalanced as to cast doubt on the inquirer’s fairness and impartiality (see Opinion 11-41; 22 NYCRR 100.4[C][2][a]). The judge must abide by all applicable limitations on judicial speech and conduct, including the rule prohibiting public comment on any pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]; Opinion 15-100 [noting that a case remains “pending or impending” at least until the time for appeals has expired and often longer]).

         In light of the restrictions on a judge’s political activity, the judge must also advise the legislator not to use the judge’s name or the fact of the judge’s participation for partisan political purposes (see e.g. 22 NYCRR 100.5[A][1][d] [judge may not permit his/her name to be used in connection with any activity of a political organization]; 100.5[A][1][e] [judge may not publicly endorse a candidate for public office]; Opinion 13-17 [a judge may not sign a legislator’s petition regarding a proposed change in the law, where the petition is framed as a partisan political initiative designed to garner statements of public support for the individual legislator]).

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         ¹The Committee assumes, without deciding, that the legislator’s advisory board may be considered a “governmental committee” or the agent of a legislative official (cf. Opinion 11-134).