Opinion 18-15

January 24, 2018

Digest:         A judge may not serve on a local committee to address bail reform whose membership will consist exclusively of defense representatives and community members since the organizers have declined to invite any prosecutorial, police, or law enforcement agency representatives.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(2)(a); Opinions 15-203; 11-75; 11-41; 09-127; 00-54/00-56.

Opinion:

         A judge who presides in a criminal part asks if he/she may serve on a non-partisan county bail reform committee that seeks “to curb the injustices and costs of pretrial detention” and “develop substantial bail reform recommendations for our county.” The organizers have solicited members from among the defense bar, non-lawyer clergy, other community members, and judges. However, they have expressly declined to invite any prosecutors, police, or law enforcement representatives to participate.

         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]). A judge generally may engage in extra-judicial activities that are not incompatible with judicial office if they 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]). 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]).

         However, neither a full-time nor a part-time judge may participate in a law-related initiative if its membership is so one-sided and imbalanced as to create an appearance that the judge’s neutrality may be compromised (see e.g. Opinions 11-75; 09-127; 00-54/00-56; see also Opinions 15-203 [judge may participate, “provided the board’s membership is not so imbalanced as to cast doubt on the inquirer’s fairness and impartiality”]; 11-41 [same]; 22 NYCRR 100.4[A][1]).

         Given that the prosecution/law enforcement perspective is specifically excluded from participation here, it would be inappropriate for a judge to participate given the clear imbalance in the committee’s invited membership.