Opinion 20-121

September 10, 2020

Digest:       It is improper for a judge to serve on a county legislature’s task force, where the judge’s proposed involvement seems to immerse the judge in helping the probation department implement its programs or internal policies, and the legislature has not mandated judicial branch participation.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(iii); Opinions 20-112; 19-163; 17-66; 16-87; 15-188; 14-139; 14-41; 12-181/12-186; 11-153; 11-05; 10-28; 07-158/98-31; 06-72; 99-111; 99-37; 99-21.

Opinion:

         A part-time judge asks if he/she may serve on a task force founded by resolution of the county legislature in response to the probation department’s expanded responsibilities following passage of “raise-the-age” legislation. The task force’s mission is to review and make evidence-based recommendations about the probation department’s restorative justice and other programs relating to raise-the-age initiatives. The resolution mandates participation of the following: the public defender’s office, the district attorney’s office, the sheriff’s office, two legislators (appointed by the majority and minority leaders respectively) and, as well, two individuals selected by the chair of the legislature “from a local organization with knowledge of restorative justice and criminal justice reform and/or an educator with knowledge of restorative justice and criminal reform.” It does not, however, mandate judicial branch participation.

         On review of the task force’s prior meeting minutes, we note repeated references to restorative justice, youth outreach and early prevention, training and recruitment, and bail reform. In addition, the district attorney discussed a victim’s preference for restorative justice, rather than more traditional criminal penalties, in a pending criminal case.¹

         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 may engage 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 proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may be a member of an organization or governmental agency devoted to the law, the legal system or the administration of justice, as long as it is not likely that the entity will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]; see also 22 NYCRR 100.4[C][2][a] [appointment to a governmental committee concerned with issues of fact or policy involving “the improvement of the law, the legal system or the administration of justice”]).

         Initially, we note that the task force includes both defense and prosecution perspectives; it is not so one-sided that the mere fact of a judge’s membership and participation would inevitably call into question his/her impartiality (see 22 NYCRR 100.4[A][1]; cf. Opinion 19-163 [“meeting with the special prosecutor to discuss these or other criminal justice reforms … is permissible if the meeting will be ‘balanced among lawyers representing all interests before the court,’ including defense interests”). Further, making recommendations about restorative justice and other alternatives to incarceration falls within the area generally authorized by the Rule, i.e. the law, legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]). In many instances, involvement in such projects is appropriate (see e.g. Opinions 99-111 [judge may serve on a Criminal Justice Coordinating Council which will advise the county legislature and other elected officials on certain issues]; 14-139 [judge may express views on how proposed transit changes will affect indigent court users and their ability to comply with court-ordered training, treatment, and probation]; 99-37 [judge may write in support of “an upgrade in the civil service classification of probation officers,” as this change could result in longer-serving and better qualified probation officers]; 99-21 [judge may participate in a collaborative effort with “a municipal Youth Bureau, various social services and substance abuse organizations, law enforcement entities and the department of probation” to help prevent juvenile delinquency]).

         However, in some instances, other factors predominate. For example, we said a part-time judge must not serve on a public commission where such service would, for example (Opinion 17-66 [rule citations omitted]):

reflect on the judge’s impartiality (see Opinion 07-155/98-31 [part-time judge may not serve on charter review commission]); undermine the judiciary’s integrity and independence (see Opinions 07-155/98-31; 15-188 [extra-judicial activities that raise serious separation of powers concerns are impermissible]; interference with performance of judicial duties (see Opinion 10-28 [judge may serve as commissioner of agency provided, inter alia, disqualifications are not so frequent as to interfere with judicial duties]); or place the judge in an adversarial role incompatible with judicial office (see Opinion 16-87 [town justice may not serve as town workplace ombudsman as it would place him/her in adversarial role as government official]).

         Here, we believe the task force’s recommendations could prove controversial in light of the frequency of political debate over restorative justice and raise-the-age. Where, as here, the judge’s proposed involvement may be publicly perceived as linked with increased county expenditures amidst intense political divisions, we believe it court insert him/her unnecessarily into the center of public controversy or otherwise compromise public confidence in his/her impartiality (cf. Opinions 11-05; 07-155/98-31).²

         Further, the resulting recommendations will presumably inform countywide legislative policy, procedures, programming, and funding for the probation department. The task force will make recommendations about “youth outreach” and “early prevention” as well as “training and recruitment” of probation department personnel. The judge’s proposed involvement here could thus ben seen as helping the department implement its programs (cf. Opinions 20-112 [judge may not participate in an initiative designed to “recommend changes to current police force deployments, strategies, policies, procedures, and practices”]; 11-153 [“the inquiring judge’s proposed conduct, though well-intentioned, is incompatible with judicial office because implementing criminal sentences is a function of the executive branch”]). Conversely, to the extent the task force will focus on “bringing the restorative justice process to the criminal justice system,” we note that a member of the judiciary cannot make an advance commitment to accept and implement such recommendations (see Opinion 06-72). “Such a prior commitment, whether by an individual judge or representatives of the court system, would, in our opinion, impinge upon the independence of the judiciary, the protection and preservation of which are incumbent upon all judges” (id.).

Thus, the judge’s involvement in this task force may raise separation-of-powers concerns, especially where, as here, the legislative resolution does “not appear to mandate judicial branch participation” (Opinion 17-66; see also e.g. Opinion 12-181/12-186 [noting this and other distinctions between a domestic violence fatality review team and a STOP-DWI planning board]).

         Accordingly, the inquiring judge should not be a member of the task force.

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¹ We remind judges to exercise caution when non-judges invite discussion of pending or impending cases (see 22 NYCRR 100.3[B][6] [ex parte communication rules]; 100.3[B][8] [public comment rule]; cf. Opinion 14-41 [suggesting judge absent him/herself from otherwise permissible fund-raising event for a not-for-profit advocacy organization if there is any discussion of a case pending before him/her]).

² Although 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]), this is not what the legislature has asked the task force to do.