Opinion 19-14

January 31, 2019

Digest:         A full-time judge may participate in a non-partisan, non-law enforcement-oriented initiative to create an anti-bullying program in schools to prevent or reduce JD and PINS behaviors.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i)-(ii); 100.4(F); 100.5(A)(1); 100.6(B)(1); Opinions 18-145; 15-203; 13-17; 13-13; 12-113; 12-74; 12-18; 11-133; 11-110; 07-52; 07-42; 00-54/00-56; 99-77; 99-21; 93-108.

Opinion:

         A full-time judge asks if he/she may participate in a program involving legislators and a school and/or school district to develop an anti-bullying program, campaign or strategy for use in schools. The program seeks to prevent or reduce juvenile delinquency(JD) and persons-in-need-of-supervision (PINS) behaviors. The judge presides over JD, PINS, and bullying cases.

         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]). His/her judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), but a judge may nevertheless engage in extra-judicial activities, if it does not (1) cast reasonable doubt on the judge’s impartiality; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         A full-time judge may accept appointment to a governmental committee concerned with issues of fact or policy relating to the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]), and may be a member or non-legal advisor of a not-for-profit civic organization unlikely to be (i) engaged in proceedings ordinarily coming before the judge (see 22 NYCRR 100.4[C][3][a][i]) or (ii) engaged regularly in adversary court proceedings (see 22 NYCRR 100.4[C][3][a][ii]).

         We have said communities benefit when judges are active in its affairs, including efforts to prevent juvenile delinquency and other juvenile-related issues (see Opinions 12-113; 12-74; 99-21). Thus, a judge may, subject to certain limits, participate in a focus group of “key leaders” convened by a school district’s consultant, who is preparing a report analyzing local truancy and possible solutions, where the group will not establish or carry out policy or hear or determine individual cases (see Opinion 13-13). A judge also may serve on an advisory council to help develop a community-based approach to improve school attendance and thereafter advise the school’s site-based decision-making board (see Opinion 12-113); attend a school orientation to explain to students and families the consequences of continued absences (see Opinion 11-133); sign a statement of support for a school district’s campaign to promote good school attendance (see Opinion 11-110); participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and unlikely to be perceived as a law enforcement program (see Opinion 12-74); and serve on a citizens’ task force to reduce teen violence and crime (see Opinions 99-77; 99-21; 93-108).

         Of course, a judge must not participate in community efforts to prevent or address truancy or delinquency issues, no matter how laudable, if his/her participation would conflict with the judge’s judicial duties, cast doubt on the ability to be impartial, or otherwise violate the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.4[A][1]-[3]). Prior opinions suggest three broad categories of potential conflicts. First, particular caution is needed if the proposed extra-judicial activity may relate to any pending or impending cases. For example, a full-time judge may not preside over “attendance court” proceedings for truant students that take place in participating schools, where the judge’s role in such proceedings would be tantamount to that of a private mediator (see Opinion 07-42; 22 NYCRR 100.4[F]).¹ Similarly, a Family Court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children; meet with agency caseworkers, educators, attorneys, and parents to advise them about specific rights and services available to these children under the Education Law; and collaborate with them to improve children’s school attendance (see Opinion 12-18). We explained the judge’s proposed role would result in frequent disqualification, involved improper intervention in pending matters before other judges, and was tantamount to serving as a mediator in a private capacity (see id.). Here, by contrast, it appears the initiative will seek ways to prevent and reduce bullying in schools generally, rather than involvement with individual cases.

         Second, a judge must not participate in otherwise laudable community activities perceived as a law enforcement program and thus compromise the judge’s impartiality (see e.g. Opinions 07-52 [judge may 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]; 00-54/00-56 [judge may not participate with law enforcement agencies in a “criminal justice focus group” for the local county coalition against domestic violence and sexual assault, where the purpose of the focus group was to endorse goals of the coalition, and, in particular, to develop specific guidelines for the police, the District Attorney’s Office, and the Probation Department to follow in such cases]). Here, the initiative is apparently sponsored by legislators and schools, rather than by prosecutors or law enforcement agencies, and it focuses on prevention of bullying behaviors to reduce the number of PINS and JD cases. Thus, it is unlikely to appear as a law enforcement program or otherwise cast doubt on the judge’s impartiality.

          Third, a judge also must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Thus, a judge must not participate if the initiative is, in essence, a partisan political initiative designed to garner public political support for the participating legislators (see Opinion 13-17). However, a judge is not necessarily barred from participating in a non-political, non-partisan program merely if it is organized by one or more legislators. For example, a full-time judge who presides in a treatment court may serve on a legislator’s advisory committee on drug abuse, where the group will “focus on improving the law and the administration of justice concerning individuals suffering from drug addiction, ... take a balanced or holistic approach to assist addicts, and ... explore how existing laws can be improved” (Opinion 15-203).

        As described here, the proposed initiative appears to avoid these three common pitfalls. We see no other likely conflict with the judge’s primary duties. Thus, we conclude this full-time judge may participate in this non-partisan, non-law enforcement oriented initiative involving one or more legislators and a school or school district to develop an anti-bullying program for schools, in an effort to prevent or reduce JD and PINS behaviors.

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¹We note that part-time judges are exempt from section 100.4(F) (see Opinion 18-145; 22 NYCRR 100.6[B][1]).