March 16, 2016
Digest: A judge may read passages from scripture at a religious service, but may not participate in a prison ministry program where inmates sentenced by the judge may be present in the program’s group sessions.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(6); 100.4(A)(1); 100.4(A)(3); 100.4(C)(3); 100.4(C)(3)(b)(i), (iv); Opinions 15-92(A); 15-79; 15-47; 14-151; 14-181; 13-161; 13-34; 10-148; 05-140; 89-83/89-84.
A full-time judge asks if he/she may read scripture at a worship service, involving a collection, and participate in a prison ministry program “by going to local prisons in the area and participating in group sessions/weekends with sentenced inmates.” He/she would not know if inmates he/she sentenced will attend.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]); therefore, a judge must not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A]) or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]). A judge may be a member or serve as an officer, director, trustee or non-legal advisor for a not-for-profit religious organization, subject to certain limitations (see 22 NYCRR 100.4[C]), and may assist a not-for-profit religious organization in planning fund-raising. However, a judge may “not personally participate in the solicitation of funds or other fund-raising activities” (see 22 NYCRR 100.4[C][b][I]) or “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (see 22 NYCRR 100.4[C][b][iv]); see also 22 NYCRR 100.2[C] [judge may not lend the prestige of judicial office to advance private interests]). Additionally, a judge must not initiate, permit or consider ex parte communications, or consider any communications to the judge made outside the presence of the parties or their lawyers concerning a pending or impending case, except as permitted by rule or law (see 22 NYCRR 100.3[B]).
1. Scripture Reading
The Committee has consistently stated “a judge may participate in a wide variety of religious activities, including evangelism or other public outreach, subject to certain limitations” (see Opinions 15-92[A]; 15-79). For example, a judge may participate in a non-fund-raising National Day of Prayer event, which will be broadcast on a religious radio network, and lead the participants in a prayer (see Opinion 15-79). Also, a judge may serve as a deacon in his/her church, preach sermons, and allow his/her sermons to be broadcast via live streaming on the Internet, as long as he/she does not solicit tithes or contributions (see Opinion 15-92[A]).
While the Rules do not prohibit a judge from personally making charitable contributions, including tithes to a not-for-profit religious organization, a judge may not preach a sermon on tithing and offerings, as this activity is tantamount to soliciting funds (see Opinion 10-148). Nonetheless, the fact that others will solicit contributions during a religious institution’s services does not, in and of itself, bar a judge’s participation in the service. For example, a judge serving as a deacon may stand at designated locations with other deacons and hold a plate or basket for the collection of tithes and offerings, “provided the judge does not participate in the actual solicitation of funds” (Opinion 13-161 [noting the deacons “serve as silent vessels” and “do not in any way solicit or request funds”]). Similarly, a judge may “perform the simple, ministerial act of physically passing the collection plate” as an usher during a religious service at a house of worship (Joint Opinion 89-83/89-84). The Committee sees no reason to prohibit a judge from reading scripture at a religious service at which a collection will be taken, provided the judge does not participate in soliciting funds.
2. Prison Ministry
In Opinion 05-140, the Committee advised that a judge may serve as a member of a church ministry which assists in transitioning formerly incarcerated individuals back into society, subject to certain restrictions and limitations. In particular, we advised the judge “not to participate with anyone who has previously appeared before him/her or advise anyone who may appear before his/her court” (id.). Moreover, the judge’s “[p]articipation should be limited to those individuals who have been released and are no longer subject to supervision by any probation or parole authority” (id.).
Here, unlike Opinion 05-140, the prison ministry program calls for this judge to counsel local inmates, who are currently incarcerated, without any screening to exclude persons sentenced by the judge. Doing so readily creates an appearance of impropriety and exposes the judge to a possibility of impermissible ex parte communications (see Opinions 15-47 [judge’s attendance at an exercise program together with treatment court participants could readily create an appearance of impropriety]; 14-151 [noting prior opinions where a judge’s “personal interaction with a litigant concerning the subject matter of the case that was (or had been) before the judge would, at the very least, create an appearance of impropriety”]; 13-34 [a judge who presides in a criminal part may not lecture at an anti-violence program at a local correctional facility, where the attendees are persons who are incarcerated while either awaiting disposition of an unresolved case or awaiting sentence, and could appear before the judge as criminal defendants]; 14-181 [a judge may not serve as a mentor to a teenage who recently appeared before the judge as the respondent in a Persons in Need of Supervision truancy proceeding]).
Thus, as this ministry program requires the judge to interact with incarcerated persons absent a mechanism to exclude those serving sentences the judge passed, he/she should not participate.