Supreme Court committee clarifies views on judges' work with criminal justice nonprofits

A state Supreme Court committee opened the door for members of the judiciary to become more involved in transforming the criminal justice system, announcing Tuesday judicial officers may serve on nonprofit advisory boards involved in criminal justice issues.

"It is the committee's view that the requesting judicial officer may serve on an advisory board of a nonprofit organization dedicated to improving criminal justice," the committee wrote. "However, these activities are permissible only so long as the judicial officer determines on a continuing basis that they are otherwise consistent with the obligations of judicial office required under code."

The oral advice summary issued by the state high court's Committee on Judicial Ethics Opinions was in response to a request for guidance made by a judge regarding service on an advisory board for a nonprofit. According to Nancy A. Black, counsel for the committee, both the names of the judge and the nonprofit are protected by confidentiality clauses in the rules of court.

In examining this request, Los Angeles County Superior Court Judge Samantha P. Jessner, a member of the committee, said the group considered the appearance of impartiality, what distinguishes legal advice from nonlegal advice when it comes to criminal justice groups and judicial commentary.

"The committee was mindful of the canons' very permissive tenor when off-bench activities involve the law," Jessner said. "The committee concluded in this case the nonprofit and the judge's participation was an activity that came within those parameters."

It is not uncommon for judicial officers to sit on advisory boards. In fact, as the summary points out, they should be encouraged to do so because of their "unique position to contribute to the improvement of the law, the legal system, and the administration of justice because they are specially knowledgeable in the law."

However, Canon 4C(3) sets limits on extra-judicial activities concerning civic and nonprofit organizations. Judicial officers are prohibited from practicing law or serving as a legal advisor under that provision.

Paul A. Hoffman, a Santa Ana-based attorney who went to the committee in 2015 on behalf of a judge wanting to volunteer with the Boy Scouts of America after the organization changed its stance on gay rights, said judicial involvement on advisory boards was essential because of the knowledge judicial officers bring with them to the table. With the parameters enforced by the committee's caution to adhere to existing canons, Hoffman said the advisory comes off as strangely obvious.

"Why wouldn't they be involved?" said Hoffman, whose inquiry with the committee in 2015 resulted in the Judicial Council lifting its ban on allowing judicial officers to volunteer with the Boy Scouts. "This has to do with the administration of justice. It's not about them being advocates but streamlining and making the justice system more effective."

While provoked by judicial inquiry, the advisory does bode well for Chief Justice Tani Cantil-Sakauye, who has been outspoken about the state's use of cash bail. Cantil-Sakauye formed a Judicial Council working group on bail, which made recommendations leading to the creation of SB 10. After the bill was signed into law, members of the bail industry collected enough signatures to stay its implementation until voters can decide on a 2020 referendum. The chief justice said her work on a post-bail justice system will press on regardless of the outcome of the vote.

Tuesday's notice talks more about judicial comment than it does advisory boards. The committee references a formal opinion it published in 2014 on the issue of judges providing testimony at legislative hearings and consulting with public officials. In that opinion, the committee determined judicial officers could comment on the effect of criminal legislation on the court system but were prohibited from advocating policy that benefited one group or social policy.

David S. Ettinger, of counsel at Horvitz & Levy LLP, said the committee does clear Cantil-Sakauye's role in the elimination of cash bail, but it doesn't seem to be taking a stance on what would constitute "improving" criminal justice.

"They look at it broadly, and they're not making value judgments on reforms that are hurting or helping," Ettinger said. "I would think it would allow a judge to serve on a conservative nonprofit as well as a liberal nonprofit."

In terms of the timing, "Maybe no one ever asked the question before," Ettinger said.