Opinion 17-39

May 4, 2017

Digest:         A full-time judge may serve on the board of a non-profit, non-partisan organization that advises governmental policymakers nationwide on criminal justice measures affecting public safety, where the organization does not engage in litigation, is unlikely to appear in the judge’s court, and the judge will not have the opportunity to make referrals to the entity. However, the judge may not personally engage in, or lend the prestige of judicial office to, fund-raising or membership solicitation; must not provide legal advice; and must not directly or indirectly engage in any political activity except as permitted by prior opinions on behalf of measures to improve the law, the legal system or the administration of justice.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(i), (iv); 100.4(G); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 15-203; 15-201; 13-17; 12-113; 10-91; 08-73; 07-52; 06-165; 05-155; 99-21; 92-106.

Opinion:

         A full-time judge asks if he/she may serve on the board of directors for the Council of State Governments Justice Center. The Justice Center is a not-for-profit entity that provides policymakers “from all branches of government” with “practical, nonpartisan, research-driven strategies and tools to increase public safety and strengthen communities” and serves as a “resource for criminal justice policymakers across the country.” Its current board members, “who collectively represent a cross-section of leaders from the legislative, judicial, and executive branches of government in states across the country, set the Justice Center’s priorities and guide its active projects.”¹ As a board member, the judge would attend two meetings a year, would not personally participate in fund-raising nor allow his/her judicial status to be used for fund-raising or membership solicitations, and would not provide legal advice. The Justice Center is unlikely to engage in litigation in any court, and the judge would not have any occasion to make referrals to it.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may participate in extra-judicial activities that are not incompatible with judicial office and do 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 (see 22 NYCRR 100.4[A][1]-[3]).

         Although a full-time judge may not practice law (see 22 NYCRR 100.4[G]), he/she may serve as an officer, director, trustee or non-legal advisor of an organization devoted to the improvement of the law, the legal system or the administration of justice, or of a not-for-profit civic organization (see 22 NYCRR 100.4[C][3]), subject to certain limitations. For example, a full-time judge may not so serve if the entity is likely to (i) engage in proceedings that ordinarily would come before the judge or (ii) regularly engage in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i]-[ii]). While a judge may assist a non-profit organization in planning fund-raising, the judge may not personally solicit or raise funds (see 22 NYCRR 100.4[C][3][b][i]) or permit use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]). Nor may the judge serve on the board of an entity to which he/she may make referrals (see Opinion 15-201).²

         Allowing judges to take part in community affairs is of benefit to the public (see e.g. Opinions 15-201; 12-113; 99-21). Thus, we have advised that a full-time judge may serve as a member of the Advisory Board of the National Center for Judicial Security, which recommends court security measures (see Opinion 06-165); on a legislator’s advisory board developing policies concerning abuse of certain illegal drugs (see Opinion 15-203); as a member of a state-sponsored justice advisory group developing state-wide policies in a certain area of the law (see Opinion 10-91); as a member of a committee of a national association facilitating the training of drug court judges (see Opinion 05-155); on a local prevention partnership board affiliated with community and governmental agencies involved in the prevention of juvenile delinquency (see Opinion 99-21); and on a public university’s advisory board discussing criminal justice issues (see Opinion 92-106 [declining to resolve the legal question of whether such service would constitute a prohibited “public office or trust”]).³

         Here, too, this judge may serve as a director of the Justice Center, provided he/she does not personally engage in, or lend the prestige of judicial office to, fund-raising or membership solicitation, and does not provide legal advice or make referrals to the organization.

         Finally, although the judge may serve as a member of the organization’s board of directors subject to these limitations, the judge must not “directly or indirectly engage in any political activity,” unless an exception applies (22 NYCRR 100.5[A][1]). While some political activity is permitted “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]), it remains subject to limitations as noted in prior opinions (see e.g. Opinions 13-17; 08-73).

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           ¹ The listed board members are from 15 different states. All three branches of state government are represented: there are two judges, five legislators, and ten executive branch officers or employees. In addition, one board member heads a non-profit that seeks to end sexual violence in North Carolina “through education, advocacy, and legislation.”

           ² For completeness, we also note that a full-time judge may not accept appointment to a governmental committee or commission that is 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]). Here, of course, the Justice Center is a not-for-profit entity rather than a governmental one.

           ³ We have, however, advised against participation when, “under the circumstances presented, the program as a whole could be perceived as a law enforcement program” (see Opinion 07-52). As described, the Justice Center’s work and overall mission are not likely to be seen as a law enforcement program. Moreover, although the board of directors includes some prosecutors and corrections officers, it also includes legislators and sitting judges.