Opinion 22-72

 

May 5, 2022

 

Digest:         A full-time criminal court judge who presides in a problem-solving court and makes referrals to a not-for-profit entity (1) may observe the entity’s programming for individuals who have completed all court mandates but voluntarily return to the agency for additional services; (2) may observe the entity’s pre-petition, diversion programming for juveniles who may be subject to delinquency proceedings but who do not have any pending criminal court proceedings; and (3) may not accept complimentary tickets to attend the entity’s lavish fund-raising gala, but may purchase tickets and attend the event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3)(b)(ii); 100.4(D)(5); 100.4(D)(5)(a); 100.4(D)(5)(c); 100.4(D)(5) (h); Opinions 21-152; 14-41; 13-192; 13-185; 89-46.


Opinion:


         The inquiring full-time criminal court judge presides in a problem-solving court. The judge often refers cases to the Center for Court Innovation (CCI)1 for assessment and social services based on mental health or other needs of the defendant, and asks about attending certain functions hosted by CCI.


         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must maintain professional competence in the law (see 22 NYCRR 100.3[B][1]). A judge may generally engage in extra-judicial activities so long as those activities are not incompatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may not be “a speaker or the guest of honor” at an organization’s fund-raising event unless an exception applies, but “may attend such events” (22 NYCRR 100.4[C][3][b][ii]). A judge’s participation is also subject to all applicable limitations on judicial speech and conduct, including the rule against impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) and the rule prohibiting public comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). A judge must not accept a “gift, bequest, favor or loan from anyone” unless an exception applies (22 NYCRR 100.4[D][5]). The exceptions include an invitation to the judge “to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[D][5][a]) and “ordinary social hospitality” (22 NYCRR 100.4[D][5][c]). If none of the specific exceptions apply, a catch-all provision allows a judge to accept only if “the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge,” subject to a reporting requirement if its value exceeds $150 (22 NYCRR 100.4[D][5][h]). Moreover, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).

 

1. Observing Certain CCI Programs

 

         The judge would like to become more educated about CCI’s services, and thus asks if it is ethically permissible to observe two categories of programs offered by the entity. The first type is for individuals who have completed all court mandates but voluntarily return to the organization for additional services. The second type is pre-petition, diversion programming for juveniles who may be subject to delinquency proceedings but do not have any pending criminal court proceedings.

 

         In Opinion 21-152, we advised that a judge may attend a local “Survivors Group,” composed of domestic violence victims, to better understand the difficulties encountered by victims of domestic violence, so long as no member of the group is a victim or witness in a matter currently pending before the judge. As we explained (id. [citations omitted]):

 

As a general matter, judges should not seek out programs that parties who appear before the judge are likely to attend. ...

 

A judge may, however, attend even one-sided events where the purpose of the judge’s participation is primarily educational and where the judge takes steps to avoid inappropriate interactions or communications with parties or lawyers. After all, a judge’s interest in supplementing their judicial education and training is “laudable.” Thus, a Family Court judge may visit a domestic violence shelter to supplement their judicial education and training, so long as the judge refrains from discussing court-related issues or pending cases, since “the treatment provided to occupants of the shelter falls within the sphere of the judge’s responsibilities in adjudicating domestic violence matters.” Similarly, a judge may anonymously observe a victim impact panel in a county other than the one in which the judge presides and to which the judge refers certain convicted defendants, since such observation “is primarily an educational opportunity relating to the judge’s judicial duties.”

  

Indeed, in order to ensure that judges fully understand and appreciate the nature of the mandates and referrals they may impose, judges handling criminal matters are required to visit correctional facilities, even though, or especially because, defendants who appear before them may be housed there, while Family Court judges are required to visit facilities for the detention of juveniles, as well as psychiatric centers to which juveniles are referred.

 

         Applying these principles, we conclude this judge may observe these CCI programs for educational purposes. We note that, by their nature, the specific programs described are unlikely to involve individuals with cases pending before the judge, though they may involve former defendants (those who choose to seek additional services after successfully completing court mandates) and potential future respondents (juveniles in pre-petition diversion programming). However, the judge must keep in mind that these individuals could be involved in matters that will come before the court in the future. Accordingly, the judge may not comment on or participate in the group’s discussion, must refrain from discussing court-related issues or pending cases (see 22 NYCRR 100.3[B][6]) and must not comment on pending or impending proceedings (see 22 NYCRR 100.3[B][8]).

 

2. Attending CCI’s Gala Fund-Raising Dinner

 

         In addition, the judge asks if it is permissible to accept complimentary or subsidized tickets to attend the entity’s upcoming fund-raising gala. The event is a lavish one to celebrate a significant anniversary for the entity, and the lowest priced tickets are $350. The judge’s attendance would not be advertised, and the judge would not be a speaker or guest of honor.

 

         A judge may make contributions to a not-for-profit charitable or civic organization, including by attending its fund-raising dinner, even if the judge refers cases to the organization (see Opinion 89-46). For example, a judge may purchase tickets and attend a fund-raising dinner for a not-for-profit organization which supports victims of child abuse and helps prepare them for court appearances (see Opinion 13-185); and for a non-for-profit organization that provides assistance and advocates for victims of domestic violence (see Opinion 14-41). Thus, the judge clearly may purchase tickets and attend CCI’s gala fund-raiser, subject to generally applicable limitations on judicial speech and conduct.

 

         As for accepting complimentary tickets to this particular fund-raising gala, we conclude none of the exceptions to the gift rule apply on the facts presented. CCI is not a bar association and its fund-raiser is not “a bar-related function” under Section 100.4(D)(5). Notwithstanding CCI’s connections to the court system, the event itself appears to be devoted to raising funds, rather than “an activity devoted to the improvement of the law, the legal system or the administration of justice” (id.). The event appears to be lavish and expensive, rather than “ordinary social hospitality” within the meaning of Section 100.4(D)(5)(c) (see Opinion 13-192 [noting that “ordinary social hospitality does not include a party that provides guests with a complete dinner at an expensive restaurant, a cruise, or like affair that is more expensive or lavish than an ordinary party”] [citation and internal quotation marks omitted]). Nor may the judge accept the tickets from CCI under the catch-all exception of Section 100.4(D)(5)(h), as CCI or its interests regularly come before the judge.

 

         Our conclusion is further bolstered because, given the high cost of the tickets and the fact that the court regularly refers cases to the organization, the judge’s acceptance of free or subsidized admission from the organization could, at the very least, create an appearance of impropriety. Indeed, the public might perceive it here as a benefit intended to influence the judge in the performance of judicial duties. Therefore, the judge should not accept complimentary or subsidized tickets from the organization.

 

 

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1 CCI is a not-for-profit organization that operates as a public/private partnership with the court system and certain municipalities to provide social services to adults and/or adolescents who are or were involved in criminal and/or juvenile delinquency court proceedings.