Opinion 16-95/16-107

June 16, 2016

Digest:         A judge may write a letter on behalf of a not-for-profit organization’s grant application to assist crime victims, provided the letter describes only the judge’s personal knowledge and experience with the organization and is limited to objective facts.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (iii); Opinions 16-89; 16-02; 14-180; 13-116; 12-109; 08-112; 06-85; 01-100/01-101; 97-71; 00-44; 98-130; 97-71; 88-94.

Opinion:

         Two judges who preside over domestic violence cases ask if they may send letters supporting a not-for-profit organization’s grant application. Inquiry 16-95 involves a private not-for-profit organization “dedicated to assisting survivors of domestic violence, teen-dating violence and human trafficking by providing free and confidential services.” The grant would aid the entity “enhance its partnership with” local police, prosecutors, probation, “and other professional allies” to work toward “goals of victim safety and offender accountability.” Specifically, the organization would work with police and prosecutors to “formalize policies and procedures” for “identifying high risk domestic violence cases.” In the proposed letter, the judge explains “It’s important that domestic violence cases coming before civil and criminal courts have been assessed and potential lethality risks identified to support a judge’s ability to adjudicate these cases successfully.” In Inquiry 16-107, the applicant is a not-for-profit social service agency which provides a variety of services to children and families. The judge’s court often refers families to this entity for “trauma based counseling, ... programs to address issues of domestic violence, programs to provide support for teen parents, and [its] supervised visitation and exchange program.” The grant would allow the society “to expand [its] Family Trauma Intervention Program” in collaboration with a local certified domestic violence service provider. The judge says the proposed project

will expand our community's capacity to prevent future family violence, domestic violence (DV) and dating violence by addressing the needs of children exposed to domestic violence. Services will include residential and non-residential developmentally appropriate services designed specifically for the unique needs of children exposed to DV, trauma informed and evidence based therapeutic services, support to non-abusing parents to help them understand and meet their children's social, emotional and developmental needs and to strengthen the parent-child attachment between the non-abusing parent and child. [The entity] and its partners will provide the aforementioned services as well as work with community partners to improve systems and system level responses for children exposed to DV.

         A judge 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]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) or personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Nonetheless, a judge may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]).

         Section 100.4(C)(3)(b)(iii) generally permits a judge to support a not-for-profit organization’s grant application by “providing a judicial perspective on the likely benefits to the law, the legal system, and the administration of justice, or sharing his/her judicial experience concerning the applicant” (Opinion 16-02). Thus, the Committee has advised that a judge may write a letter supporting: a municipality’s application for a grant to improve the overall safety and accessibility of the municipal facility that houses the court and the court clerk’s office (see Opinion 12-109); an organization seeking funding from the New York State Division of Criminal Justice Services to develop a legal advocacy component in the area of domestic violence (see Opinion 97-71); or a not-for-profit or governmental agency’s application for funding to continue “services provided directly to the court” (Opinion 88-94 [distinguishing between a program “that directly and on a regular basis provides services to the court” and those “only tangentially or indirectly ... involved with the court’s operations”]). A judge also may co-chair a steering committee seeking a million-dollar federal community access grant to integrate and expand mental health services for children and families in the community (see Opinion 00-44) or “act as a consultant to a federal agency providing assistance to crime victims, for the purpose of reviewing grant applications” (Opinion 98-130). Analogously, a judge who regularly refers litigants to a residential substance abuse treatment facility may write a letter supporting the facility’s application to become a participating service provider for insurance purposes (see Opinion 14-180). Likewise, a judge may publicly express his/her views “concerning the performance and professional conduct of attorneys affiliated with organizations that are seeking to enter into a contract with a municipality for the providing of legal representation for indigent criminal defendants” (Opinion 01-100/01-101), although he/she must refrain from commenting on “whether the organization’s bid should be accepted or a particular contract entered into” (id.).

         In each scenario, the projects and programs directly concerned the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]). Notably, at least two of these involved a legal advocacy project which would apparently represent only one category of litigants (see Opinions 01-100/01-101 [indigent legal defense services]; 97-71 [grant from the Division of Criminal Justice Services to fund legal advocacy in the domestic violence area]), and another involved grants that would only benefit crime victims (see Opinion 98-130).

         In one opinion, however, the Committee advised “it would be improper for a judge to write a letter supporting a grant application that will finance services for the benefit of crime victims only” (Opinion 08-112), even though the proposed services would indisputably “promote the administration of justice,” just as in prior opinions applying Section 100.4(C)(3)(b)(iii) (id.). Remarkably, the Committee then stated a letter supporting the program would nonetheless be permissible, “provided the District Attorney and Public Defender also” submit supporting letters, as they apparently had done or planned to do (id.).

         The Committee has not subsequently applied this condition to other instances where a judge seeks to make recommendations to fund-granting organizations on “projects and programs concerning the law, the legal system or the administration of justice,” and indeed, on further consideration, the Committee can see no basis in the language of Section 100.4(C)(3)(b)(iii) for such a limitation. To the contrary, where a judge “sets forth only [his/her] personal knowledge and experience” with the applicant and limits his/her comments to “objective facts” (Opinion 08-112), a judge’s impartiality cannot reasonably be questioned, even if the letter supports a grant applicant that is aligned with one side in litigation and whose attorneys may subsequently appear before the judge (see Opinion 97-71 [judge need not disclose his/her letter supporting funding for a program whose attorneys appear before him/her, because an “inference of bias could not reasonably be drawn merely from the fact that” the judge had written such a letter]).

         Accordingly, Opinion 08-112 is hereby modified to eliminate the prohibition on “writ[ing] a letter supporting a grant application that will finance services for the benefit of crime victims only” unless the prosecution and defense also submit such letters.

         Here, because the proposed projects or programs described here clearly involve the law, the legal system and the administration of justice, these judges may write letters supporting a not-for-profit organization’s grant application to assist crime victims, provided the letter sets forth only the judge’s personal knowledge and experience with the organization and is limited to objective facts (see Opinions 06-85; 01-100/01-101).

         The judges should, of course, carefully review their proposed letters to make sure they are consistent with generally applicable limitations on judicial speech and conduct. For example, a judge’s comments must not “compromise the judge’s apparent or actual impartiality” (Opinion 13-116), “manifest a predisposition to decide a particular type or class of case a certain way” (id.), or commit the court to partner with the applicant (see Opinion 16-02). As a reminder, the Committee has also recommended that judges not sign form letters, but should write their own (see Opinions 16-89; 01-100/01-101 [“First-hand knowledge and personal judgment are what a judge should be expected to provide, the basis and details of which are a matter of individual observation and experience that should be expressed individually.”]).