April 26, 2012
Digest: A judge may participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 11-133; 11-110; 08-103; 07-52; 07-19; 99-77 (Vol. XVIII); 99-21 (Vol. XVII); 97-108 (Vol. XVI); 93-108 (Vol. XII); 90-25 (Vol. V).
The inquiring judge, who presides in a drug court, has been invited to participate in a panel discussion about preventing and reducing underage drinking. According to the judge, the panelists will address topics such as adults facilitating underage drinking in their homes. The judge anticipates that the audience will mostly consist of parents of teenage children. A private not-for-profit substance abuse treatment and prevention organization is sponsoring the event. Although staff from the treatment arm of the organization may sometimes appear before the judge in connection with a defendant's compliance with a drug treatment program,1 it appears that the organization is not aligned in advocacy with any "side" in a criminal proceeding (i.e., prosecution, defense, or victims). The inquiring judge states that the other panelists would be a director of a local mental health department, a parent, the director of the treatment program, and two law enforcement officers.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may speak, lecture, teach and otherwise participate in extra-judicial activities (see 22 NYCRR 100.4[B]), as long as such activities 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]-). A judge also must abide by generally applicable limitations on judicial speech, such as the restriction on making any public comment on pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B]).
The Committee has recognized that the community benefits from having judges take an active part in community affairs whenever possible, including in community efforts to prevent juvenile delinquency (see Opinion 99-21 [Vol. XVII]). Thus, the Committee has advised that a judge may, subject to certain limitations, attend a school orientation to explain to students and their families the consequences of continued school absences (see Opinion 11-133); sign a statement of support for a school district's campaign to promote good school attendance (see Opinion 11-110); and serve on a citizens task force to reduce teen violence and crime in the community (see Opinion 99-77 [Vol. XVIII]; see also Opinions 99-21 [Vol. XVII] [judge may serve on local board affiliated with agencies involved in preventing juvenile delinquency]; 93-108 [Vol. XII] [judge may be member of committee which seeks ways to reduce violence in the community; 90-25 [Vol. V] [judge may serve on advisory board of neighborhood crime prevention program]).
Here, too, the proposed panel discussion is clearly intended to help reduce and prevent underage drinking through education of parents and other responsible adults, presumably in an effort to diminish alcohol-related accidents and injuries, as well as delinquent or criminal conduct among minors in the community. Although law enforcement representatives will be on the panel, the Committee believes the program is, and will be perceived as, educational and preventative in nature rather than as a law enforcement program (compare Opinions 07-52; 97-108 [Vol. XVI]). The topic to be discussed does not appear to be controversial and does not contain any express or implied pledge or promise of conduct by the judge in his/her judicial capacity. Therefore, under the circumstances presented, the judge's participation does not appear to compromise the appearance of the judge's impartiality or to conflict with any of the judge's judicial obligations (see Opinion 11-110). Accordingly, the Committee concludes that the judge may participate as a panelist in the program.
1 The Committee understands that the organization offers a treatment program that a drug court defendant may choose to attend (from a list of approved providers) for court-mandated treatment. In certain circumstances, program staff would report a defendant’s failure to comply or progress to a drug court team member, who would then notify the judge. Although the judge could not serve on the board of directors of the organization (see e.g. Opinions 08-103; 07-19), the Committee notes that this fact, standing alone, is not necessarily a bar to the judge’s participation as a panelist in an educational program the organization sponsors.