Opinion 18-60
March 29, 2018
Digest: A full-time judge may serve on a governmental task force to help address impacts of closing a prison facility, where its members represent a broad spectrum of interests and the task force will focus on planning for an orderly transition rather than fielding complaints.
Rules: 22 NYCRR 17.1(a); 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i)-(ii); Opinions 16-135; 11-05; 00-83.
Opinion:
A full-time judge presiding in criminal cases asks if he/she may serve on a government task force of “stakeholders...{ from} law enforcement, criminal justice, civil rights, community development, youth development, land use and other relevant disciplines,” to address impacts of a proposed prison closure. The group will address several issues, such as “planning for increased inmate housing..., security, the use of diversion programs, and identif[ying]... specific neighborhood and [area] impacts.”
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 judge may engage in extra-judicial activities that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]). A judge may be a member of an organization or governmental agency devoted to the law, the legal system or the administration of justice, as long as it is not likely that the entity will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]) and, if the judge is full-time, as long as the entity is not engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]).
Initially, we note the invited stakeholders represent a broad spectrum of interests, including prosecution, law enforcement, and defense perspectives as well as “community development, youth development, [and] land use.” We therefore believe the task force is sufficiently balanced that the mere fact of a judge’s membership and participation cannot reasonably call into question his/her impartiality (see 22 NYCRR 100.4[A][1]).
We see little or no doubt prison facilities relate directly to “the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]). After all, the Rules of the Chief Judge strive to “ensure that every judge or justice be familiar with those facilities where the judge or justice is authorized to direct the detention, treatment, examination or confinement of any person in connection with Criminal or Family Court proceedings,” by requiring them to visit such facilities and institutions periodically (22 NYCRR 17.1[a]). Thus, we have advised that a full-time judge may accept appointment by a county legislature to a county task force to study the feasibility of creating a county juvenile detention/treatment center (see Opinion 00-83). Here, too, we view the judiciary as having a strong interest in to be involved in the proposed closing of a large prison facility, which will affect the placement of many people convicted of crimes.
Finally, we distinguish this task force from the Corrections Advisory Board discussed in Opinion 11-05. Here, the task force will focus on planning for an orderly transition rather than fielding complaints concerning ongoing jail conditions. Because the Board was “involved in fielding complaints regarding the local correctional facilities, aspects of which are likely to come before” the judge, “serving on that Board would be incompatible with [his/her] judicial duties and would also cast doubt on [his/her] independence and impartiality” (Opinion 11-05). Moreover, in light of “the frequency of litigation over local jail conditions,” we concluded the Board’s work would become unduly controversial, and thus incompatible with judicial office (id.).
Here, by contrast, we do not foresee the task force itself will be engaged in any litigation, or even that its recommendations will likely result either in frequent litigation (cf. 22 NYCRR 100.4[C][3][a][ii]) or in “proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). We recognize, of course, task force’s recommendations may prove controversial. However, given the judiciary’s strong interest in ensuring orderly transition and closure of the facility, we believe the judge’s proposed involvement will not insert him/her unnecessarily into the center of public controversy or otherwise compromise public confidence in his/her impartiality (cf. Opinion 16-135).