Opinion 22-48

April 5, 2022

Dear :

This responds to your inquiry (22-48) asking whether you may concurrently serve as a part-time city court judge and a full-time executive director of a not-for-profit center for social and criminal justice. The center, which advocates for criminal justice reform, is developing a residential mental health treatment facility as an alternative to incarceration for accused felony offenders with serious mental health issues. The facility is located in a different county than the city court.

       We previously advised that, where a court had the power to refer defendants to a not-for-profit organization’s residential mental health facility, an individual could not serve simultaneously as the organization’s executive director and as a part-time city court judge (see Opinion 17-102). As we observed (id.):

That the center and court are located in different jurisdictional districts does not warrant a different result as behavioral health treatment referrals from courts are routinely made across county and state lines.

         You are aware of this prior opinion, but you note several new developments. Most significantly, due to the source of funds, the mental health facility “has agreed to only take defendants who reside in [certain specified counties] at the time of arrest, making it ... unlikely that a Defendant who may eventually be destined for [the facility] pursuant to a plea agreement signed by a County or Supreme Court Judge, would ever come before [you], even during an arraignment.” The city court in which you would preside is not in one of the specified counties, nor is it adjacent to any of those counties.¹

         Therefore, based on your representation that the mental health facility will only accept referrals of defendants who reside outside your county, it appears you will not be empowered to refer defendants to it directly or indirectly and will not hear any portion of a case in which the defendant may be referred to the facility by other judges.

         Accordingly, you may simultaneously serve as a part-time city court judge and executive director of the center. However, should circumstances change and if a time arises where you will be empowered to refer defendants to the center’s mental health facility, the positions may be incompatible (see Opinions 17-102; 89-109).

         Enclosed for your reference are Opinions 17-102, 07-81, and 89-109.

                                       Very truly yours,

                                        Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

                                       Lillian Wan

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.

_______________________

¹ Indeed, we understand your county is at least 90 miles away from the counties from which the mental health facility plans to accept defendants.