Opinion 20-194

December 10, 2020

Digest:       A part-time judge may serve on a county’s criminal justice council, which will bring together a diverse group of stakeholders to discuss issues affecting the criminal justice system and seek cooperative solutions where possible.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); Opinions 20-183; 20-121; 20-112; 12-70; 17-66; 99-111.

Opinion:

         A town or village justice asks if they may serve on a county’s criminal justice council as a representative of the local magistrates association. The judge states that the council is a “[c]ounty based group, run by the Chair of Public Safety Committee… designed to bring together various county and community agencies to discuss issues impacting people in the criminal justice system and trying [to] find cooperation and solutions if possible.” The council includes representatives from the district attorney’s and public defender’s offices, “various law enforcement agencies,” including probation and pre-trial services, town supervisors, and “other public service agencies.”

         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 criminal justice council “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” (Opinion 20-121). We have advised that a judge may participate on a local criminal justice council “whose mission is to engage in a collaborative process of information sharing to maximize resources resulting in an enhanced criminal justice process” (Opinion 12-70). Likewise, a judge may participate on a criminal justice council “which is studying ways of improving the criminal justice system in the county” (Opinion 99-111).

         Of course, even where a seemingly balanced group seeks to improve aspects of the criminal justice system, a judge must not participate if such service would reflect on the judge’s impartiality; undermine the judiciary’s integrity and independence; interfere with performance of judicial duties; or place the judge in an adversarial role incompatible with judicial office (e.g. Opinion 17-66 [citations omitted]). Thus, a judge may not participate in a council organized under Executive Order 203 to “recommend changes to current police force deployments, strategies, policies, procedures, and practices” (Opinions 20-183; 20-112). Nor may a judge 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” (Opinion 20-121). Likewise, where multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to “promote trust and open dialogue between activists and police concerning those incidents” (Opinion 20-112).

         Nothing in the inquiry suggests the criminal justice council here is involved in any of the problematic areas addressed in Opinions 20-183, 20-121, and 20-112 or would otherwise create an appearance of impropriety. To the contrary, it appears similar to the balanced criminal justice councils described in Opinions 12-70 and 99-111, and is likewise permissible as an effort to work with diverse stakeholders to improve the criminal justice system.

         The judge should, of course, abide by generally applicable limitations on speech and conduct, including the prohibition on publicly commenting on any pending or impending court proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]). As always, the judge may, to the extent the judge deems appropriate, advise the organizers of these or other limitations on the judge’s membership and participation.