Opinion 23-237

February 1, 2024

Digest: A full-time judge may serve on a Department of Criminal Justice Services advisory board that will make recommendations about distributing federal funds, provided that (1) the advisory board’s membership is balanced and (2) the judge’s involvement is limited to reviewing and making recommendations on distributing funds to the courts, and not to law enforcement organizations.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(a); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(iii); Opinions 23-53; 22-135; 20-121; 20-28; 17-88; 12-156; 07-52; 06-108; 95-34.

Opinion:

          A full-time judge has been asked to serve on an advisory board created by the Department of Criminal Justice Services (DCJS).  The advisory board will review applications and make recommendations about the distribution of federal funds for which DCJS is the administering agency.  Some of those funds may be awarded to drug courts, veterans courts, and extreme risk protective order (ERPO) programs.  The advisory board will also “be charged with informing and guiding the state’s gun violence reduction programs and initiatives as it relates to extreme risk protective orders and other such measures.”  Although the inquiring judge originally believed defense counsel and/or defense organizations were excluded from the advisory board, the judge has subsequently learned that advisory board members will include defense counsel in addition to law enforcement, the National Alliance on Mental Illness, the NYS District Attorneys Association, government agencies such as NYS Victim Services, Office of Mental Health, the Office for the Prevention of Domestic Violence, the Attorney General’s Office, as well as some community and non-profit groups. 

          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 full-time judge must not accept appointment to a governmental committee or 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” (22 NYCRR 100.4[C][2][a]) and must not serve as an officer, director, or non-legal advisor of an organization likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]) or to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).  A judge “may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3][b][iii]).

          Absent special factors creating an appearance of impropriety, a judge generally may “engage in activities which are ‘devoted to the improvement of the law, the legal system or the administration of justice’” (Opinion 17-88, quoting 22 NYCRR 100.4[C][3]).  In some circumstances, however, we have found a judge’s proposed activities to be too closely aligned with law enforcement or prosecutorial interests.  For example, we advised that a part-time lawyer judge may not serve as an assistant counsel for DCJS because “the proposed employment is ‘too closely aligned with law enforcement interests’ throughout the state” (Opinion 20-28 [citation omitted]).  We also said that a part-time lawyer judge may not “assist the town police department in seeking Extreme Risk Protection Orders” (Opinion 22-135 [explaining that ERPO petitions “can readily be seen as prosecutorial in nature” since they “often accompany criminal charges and an attorney seeking an ERPO is necessarily ‘advocat[ing] restrictions on the respondent’s … constitutional rights’”] [citation omitted]).   Indeed, we have said a judge must not “participate in a program that might be perceived as a law enforcement program” (Opinion 07-52), and thus we have advised that a full-time judge may not serve on a domestic violence task force whose stated purpose is to promote “offender accountability” (Opinion 06-108).  Likewise, a judge may not serve on a county legislature’s task force, where the judge’s proposed involvement “seems to immerse the judge in helping the probation department implement its programs or internal policies, and the legislature has not mandated judicial branch participation” (Opinion 20-121).

          Nonetheless, we have also recognized that “balanced membership helps ensure that the judge’s participation will not cast reasonable doubt on the judge’s impartiality” (Opinion 23-53, quoting Opinion 12-156).  Thus, we have said a judge may participate in a domestic violence task force that includes members from the District Attorney’s Office and the Public Defender’s Office and whose goal is to “improv[e] the legal system’s handling of domestic violence matters” (Opinion 95-34).  We also advised that a judge may serve on “a committee established by a local prosecutor to address certain legal issues concerning a prosecutor’s discovery obligations,” where “the committee will consist of the criminal defense bar, representatives of the local Legal Aid Society, the director of the local 18B panel and senior prosecutors” (Opinion 17-88).

          Here, it appears that the membership of the advisory board is balanced, and that the advisory board’s functions include making recommendations about distributing federal funds to projects and programs concerning the law, the legal system, or the administration of justice.  However, this is a DCJS-sponsored advisory board which will fund certain law enforcement programs.  On the facts presented, we conclude the judge may serve on this DCJS advisory board, provided that (1) the advisory board’s membership is balanced and (2) the judge’s involvement is limited to reviewing and making recommendations on distributing funds to the courts, and not to law enforcement organizations.