January 24, 2013
Digest: A Family Court judge may not serve on the advisory board of the children’s rights division of a not-for-profit organization.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); Opinions 06-120; 06-108; 06-83; 01-64 (Vol. XX); 96-96 (Vol. XIV).
A Family Court judge asks whether he/she may serve on the advisory board of the children’s rights division of a not-for-profit organization. The judge emphasizes that he/she would “serve strictly in an advisory capacity” and would not have any governance or fund-raising role. According to the judge, the organization’s mission statement is to preserve human rights world-wide by, among other things, taking steps to “bring offenders to justice” and “hold abusers accountable.” The organization’s children’s rights division has issued reports on both domestic and foreign issues, “including children discharged from foster care to homelessness in California, life without parole for minors, and the use of solitary confinement for minors.” The judge states that a recent report “covered practices in New York State” as well as other jurisdictions.
The judge notes that the board meets four times a year, and board members listen to presentations of forthcoming reports. They “are invited to provide feedback and suggestions as to advocacy strategies.” The judge states that he/she “could refrain from providing such feedback and/or suggestions where domestic child welfare and juvenile justice matters are an issue.” In any event, the judge would not participate in fund-raising efforts and notes that the organization “does not represent individuals and there is no likelihood that the organization would ever be a party or amicus in a matter before me.”
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]). Generally, a full-time judge may serve as an officer, director, trustee or non-legal advisor of a not for profit charitable or civic organization unless it will be engaged in cases that ordinarily would come before the judge or be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][a][i]-[ii]). Since a judge’s judicial duties take precedence over all of the judge’s other duties (see 22 NYCRR 100.3[A]), a judge must ensure that his/her extra-judicial activities do not cast reasonable doubt on his/her capacity to preside impartially, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-).
The Committee has previously applied these principles, concluding that a judge should not be a board member of a not-for-profit organization if it champions issues directly related to issues the judge may be called upon to address in his/her judicial capacity, as to do so would cast doubt on the judge’s independence and capacity to serve impartially (see e.g. Opinions 06-120; 01-64 [Vol. XX]; 22 NYCRR 100.4[A]).
Thus, the Committee has advised that a County Court judge should not serve as a member of a Domestic Violence Task Force that, inter alia, seeks to promote “offender accountability” (Opinion 06-108); a judge who presides over felony matters (presumably including drug and related offenses) should not serve on a local committee that will ask the New York State legislature to mandate drug testing for all middle and high school students (see Opinion 06-120); a judge who presides in an Integrated Domestic Violence Court should not serve on the advisory board of an organization that provides representation and serves as a courtroom advocate on behalf of alleged victims of domestic violence (see Opinion 06-83); a Family Court judge should not serve on the board of a local advocacy entity involved in public lobbying on various family and children’s issues (see Opinion 01-64); a judge who issues orders of protection and handles arraignments and misdemeanor trials concerning allegations of domestic violence must not be a member of an advisory committee to a victim services agency (see Opinion 96-96 [Vol. XIV]).
Here, the not-for-profit organization is clearly an advocacy organization. Indeed, its mission statement includes the concept of bringing offenders to justice (cf. Opinion 06-108 [organization promotes “offender accountability”]). The children’s rights group focuses on issues that could easily come before a Family Court judge, and thus the inquiring judge’s proposed participation on its advisory board would call the judge’s impartiality into question, even if the judge abstained from providing feedback on reports relating to domestic children’s rights issues.