Opinion 22-187
February 2, 2023
Digest: A full-time judge (1) may serve as co-chair of the ACACIA Network, a not-for-profit social services organization, provided the judge does not serve in a court that makes referrals to the organization, but (2) may not serve on a bar association committee on corrections and community reentry on the facts presented.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); 100.5(A)(1); Opinions 21-161; 21-136; 21-34; 21-22(A); 20-212; 20-209; 20-128; 20-55; 20-42; 19-122; 19-95; 19-36; 19-21; 19-01; 18-60; 15-190; 12-93.
Opinion:
A new full-time judge, who currently presides in civil matters, asks if it is ethically permissible to (1) serve as co-chair of a division of the not-for-profit ACACIA Network which provides services “in the areas of health, housing, social services, economic development, and cultural revitalization” and (2) serve on a bar association’s corrections and community reentry committee.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]). A judge’s extra-judicial activities must comport with judicial office and not (1) cast reasonable doubt on their duty to act impartially; (2) detract from the dignity of the office; or (3) interfere with judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may be a member or serve as an officer or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice or “of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit,” subject to limitations (see 22 NYCRR 100.4[C][3]). However, a judge must not serve as an officer or director if the organization will likely “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]). A full-time judge also must not serve if the organization will likely “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]).
1. Board Service with the ACACIA Network
The ACACIA Network is a non-profit organization which receives funding, in part, from the local department of homeless services to provide various social services in the area. The division co-chaired by the inquirer oversees transient shelters administered by the network but is not involved with securing permanent housing or in any advocacy work. The judge states that ACACIA neither engages in adversarial proceedings nor accepts either direct or indirect court referrals from the judge’s court. However, we understand that local criminal courts may, and do, refer criminal defendants to ACACIA’s programs.
A judge may not serve on the board of an organization to which they have the power to make referrals (see Opinions 20-55; 20-212 [court refers defendants through an alternative-to-incarceration program]; 21-136 [recovery center to which the judge makes referrals in substance abuse treatment court]; 15-190 [agency offers traffic safety education programs to which the judge may make referrals]). Furthermore, a full-time judge may not serve on the board of a not-for-profit organization that is likely to be engaged regularly in adversary proceedings before any court (see Opinions 21-34; 19-122; 19-36; 22 NYCRR 100.4[C][3][a][ii]).
On the facts presented, we conclude the judge’s service with the ACACIA Network implicates neither of these concerns. As a judge who presides in civil cases, the inquirer does not presently have the power to make referrals for criminal defendants. In addition, the judge indicates that ACACIA does not regularly engage in adversary proceedings before any court. We conclude that the judge may continue serving as an officer or director of the ACACIA Network division at issue, subject to the following caveats. First, should the judge be assigned to a criminal court, thereby gaining the power to refer litigants to ACACIA, the judge may not continue to serve. Second, while it is unlikely that the ACACIA Network through one of its charitable divisions will appear in the judge’s court, we have said “a judge who is currently an officer, director or board member of an entity may not preside over any matters in which the entity is a party” (Opinion 19-01 [citations omitted]). As always, remittal of disqualification requires full disclosure and the affirmative consent of the parties and their counsel (see Opinion 21-22[A]).
2. Participation in a Bar Association Committee on Corrections and Community Reentry
According to the inquiry, the bar association committee in question:
addresses a wide range of criminal justice and reentry issues including conditions affecting people in jails, prisons and other detention facilities, as well as people under supervision on probation and parole. These issues include solitary confinement, inmate and officer violence, access to the courts, health care, education and mental health and substance abuse treatment. Additionally, the Committee addresses the effects of policing and police reform and criminal reform legislation on jail conditions, sentencing, reentry, and parole and probation. We have been active in the movement to decrease mass incarceration and close [a controversial prison facility]. We have also been active in advocating for the release of incarcerated persons who are medically high risk or near the end of their sentence in light of the COVID-19 pandemic at both the [local] and State level. Other major areas of focus include a broad examination of parole and probation practices (including pending reform bills and legislation, and the consideration of whether broader overhaul is needed), and legislative changes and proposals for sealing and expungement of criminal histories.
While participation in bar associations “is to be encouraged” (Opinion 12-93) we have nevertheless urged caution when a judge’s extra-judicial “involvement in matters of ‘substantial public controversy’ may cast reasonable doubt on a judge’s ability to be impartial in performing judicial functions” (Opinion 20-128 [judge must determine whether not-for-profit entity will insert the judge unnecessarily into public controversy]). Indeed, we said a judge may not be a member of a bar association task force that “focuses on topics that are extraordinarily controversial and political in nature” (Opinion 20-209 [task force focusing on Puerto Rico’s right to self-determination and the possible path to statehood]).
Accordingly, judges must avoid inserting themselves “unnecessarily into public controversy” in their extra-judicial activities (id.). As we explained in Opinion 21-161, in which we said a judge may not serve on the board of a reentry services organization that takes positions on controversial issues:
[T]he judge is not providing their personal views concerning bail legislation, but is seeking to serve as a director of an entity which advocates and lobbies not only on bail legislation but also on many other types of controversial issues. Additionally, many of the statements and activities referenced on the entity’s website exceed generally applicable limits on speech and conduct (see 22 NYCRR 100.4[A][1]-[3]; Opinion 20-42 [in commenting on bail reform, a judge must carefully consider whether their statements could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice or commitment on an issue; a judge’s writings must also comport with the dignity of judicial office and eschew personal attacks on government officials]).
Significantly, the bar association has been “active in advocating for the release of incarcerated persons who are medically high risk or near the end of their sentence.” We have advised that a judge may not “interject him/herself into the clemency process” (Opinion 19-95). Indeed, even a “suggestion or recommendation that a specific inmate make an application to the governor’s clemency office and any affirmative steps or actions by the judge in furtherance of that suggestion or recommendation” is inconsistent with judicial impartiality, as it “goes beyond the judge’s role as a neutral arbiter” (Opinion 19-21).
Careful consideration of the remaining issues described in the bar committee’s mission statement reveals additional topics which, over time, have proven to be consistently controversial by virtue of their subject matter and the opposing positions expressed by the public, public officials, supporters of criminal justice reform, attorneys, police and correctional administrators, medical professionals, and the media, among others. For example, the closing of a controversial high-profile prison facility, police reform, parole and probation practices, and violence in detention facilities are matters of substantial debate that have received widespread publicity. Given that this bar association committee engages in advocacy and takes positions on controversial issues, the judge’s membership could easily raise questions about the judge’s impartiality or create the impression of being predisposed to support a particular position (cf. Opinion 18-60 [judge may serve on governmental task force to “address impacts of closing a prison facility” where 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”]).
Accordingly, on the facts presented, we conclude that the inquiring judge may not serve on the bar association committee on corrections and community reentry.