Opinion 21-161

October 28, 2021

Digest:       On the facts presented, a part-time judge may not serve on the board of a reentry services organization that engages in advocacy and takes positions on controversial issues.

Rules:        22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3)(a)(i); 100.5(A)(1)(iii); 100.6(B)(1); Opinions 20-81(C); 20-70; 20-42; 19-120; 18-78; 16-135; 15-210/09-56; 14-29.

Opinion:

       A town justice asks if they may serve on the board of the Center for Community Alternatives, a not-for-profit organization that provides reentry services for individuals leaving prison in certain metropolitan areas outside the judge’s jurisdiction. The reentry services include “education, employment, housing support and case management,” but none of these programs are offered in the judge’s town or any of the surrounding towns. The judge advises that the organization has a policy and advocacy arm “that works with other organizations state-wide to influence legislation relating to the criminal justice system, such as bail reform and mandatory surcharges.”

       The organization’s website describes more fully the “direct services” it provides, including gender-based substance treatment, emergency/transitional housing, youth mentoring as well as after school programming and career exploration for justice-involved youth sentencing mitigation, and court advocacy. With respect to its sentencing mitigation services, the organization “assist[s] criminal defense attorneys with advocacy at all stages of the criminal justice process, including equities, sentencing memoranda, and other functions upon request.”

       In addition to these “direct services,” the entity aims to “reform the criminal legal system and end mass incarceration across New York State.” In this regard, under the heading “Advocacy and Organizing,” the entity’s website states:

Alongside formerly incarcerated leaders, advocates and organizations across the state, [the organization] fought for bail reform legislation that would protect pretrial liberty and vastly reduce the number of people incarcerated pretrial. Now, we are fighting against rollbacks to the new law, paving the way for a system that protects the pretrial freedom of all people.

Pushed for by Governor Cuomo and the Senate majority, these rollbacks represent a capitulation to racist fear mongering and a coordinated campaign of opposition led by protestors and police across the state.

         Additionally, the organization identifies itself as one of the “Endorsing Organizations” of a legislative agenda entitled “Justice Roadmap,” which advocates for the passage of legislation on various issues including: 1) ending qualified immunity for police officers; 2) decriminalizing the possession and sale of syringes and buprenorphine; 3) elder parole; 4) clean slate (automatic criminal record expungement); 5) passing legislation to decriminalize sex work between consenting adults; 6) barring law enforcement officers from sharing information with ICE or Customs and Border Patrol; and 7) sentencing reform that eliminates mandatory minimums, reduces maximum sentences, and eliminates sentencing enhancements.

         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 part-time judge generally may serve as an officer or director of a not-for-profit civic or charitable organization, provided the entity is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]; 100.6[B][1]) and further provided such service will not cast reasonable doubt on their capacity to act impartially as a judge, will not interfere with the proper performance of judicial duties, and is not otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Judges may also appear before an executive or legislative body or public official on matters concerning the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][1]), and may engage in very limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (see 22 NYCRR 100.5[A][1][iii]).

         We note, initially, that judges generally may publicly express their views on matters concerning the law, the legal system or the administration of justice, including controversial matters such as bail reform (see e.g. Opinion 20-42 [subject to generally applicable limits on judicial speech and conduct, a judge may publicly comment on the recently enacted bail legislation to identify perceived strengths and weaknesses and to suggest the legislature seek additional comments or testimony to improve the law]; see also Opinions 19-120; 18-78; 16-135). However, that is not the case here. First, the judge is not providing their personal views concerning bail legislation, but is seeking to serve as a director of an entity which advocates and lobbies not only on bail legislation but also on many other types of controversial issues. Additionally, many of the statements and activities referenced on the entity’s website exceed generally applicable limits on speech and conduct (see 22 NYCRR 100.4[A][1]-[3]; Opinion 20-42 [in commenting on bail reform, a judge must carefully consider whether their statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice or commitment on an issue; a judge’s writings must also comport with the dignity of judicial office and eschew personal attacks on government officials]).

         Where a not-for-profit organization “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities” (Opinion 15-210/09-56), we have said (id. [citations and footnote omitted]):

a judge may contribute to such organizations and join as a regular member, subject to certain limitations. For example, a judge who joins such an organization must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization.

Indeed, we have repeatedly opined that taking a leadership role in such organizations may publicly associate the judge with the organization’s positions on matters of public controversy, in a way that simple membership does not (see e.g. Opinions 20-70; 14-29). 

         We have also applied these principles to a part-time judge’s inquiry about serving on the board of ASISTA, a not-for-profit entity which engages in controversial policy advocacy activities concerning immigration and also “provides ‘case assistance’ or ‘individualized technical help for attorneys’ and others representing immigrants” (Opinion 20-81[C]). We said this was impermissible, even though “ASISTA is unlikely to appear in this part-time judge’s court,” because ASISTA “nonetheless regularly engages in ‘potentially controversial lobbying, advocacy and litigation activities’ such that a judge who assumed a leadership role in the entity would impermissibly associate him/herself with organizational positions on controversial issues” (id.).

         Here, too, although the organization engages in many educational and charitable activities that are permissible for judges, it also engages in lobbying and advocacy with state government concerning controversial issues, and provides services to defense counsel in criminal cases. We conclude that the inquiring judge may not serve on the organization’s board of directors.