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May a judge participate in a Truancy Court sponsored by a local school district? The school district refers parents and students who have missed classes to a program it calls Truancy Court. The program is voluntary and meets with parents and students at school to encourage school attendance so as to avoid a referral to the juvenile court for truant behaviors.

Secondly, may the judge wear a robe while engaged in the activity and allow the name of “court” to be associated with the conduct?

It is the opinion of the Commission that the proposed activity (hereinafter referred to as “Truancy Court”) of advising parents of the law and encouraging truant students to attend school is beneficial to the student and the community and in a general sense should be encouraged. However, no matter how worthwhile the activity is to society, the Code of Judicial Conduct still governs whether the extrajudicial behavior is appropriate conduct for a judge. The relevant Code provisions are:

CANON 3. A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.

2-3.1 Extrajudicial Activities in General

A judge may engage in extrajudicial activities, except as prohibited by law or this code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge’s judicial duties;

(B) participate in activities that will lead to frequent recusal of the judge;

(C) participate in activities that would demean the judicial office or cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(D) engage in conduct that would appear to a reasonable person to be coercive.

The title of “court” and judicial robes are designed to establish the authority of a judge. Truancy Court is not a mock trial or moot court proceeding conducted for educational purposes; it involves actual behavior and consequences. The Commission on Retirement, Removal and Discipline does not believe a judge participating in Truancy Court should use the courtroom, the title of “court”, or judicial robes during the judge’s involvement as a truancy judge.

The judge’s activity as a Truancy Court judge also raises the potential problem of frequent disqualification in cases wherein the parents or children appear as a party or a witness. Supreme Court Rule 2-2.11 requires recusal in any case where a judge’s “impartiality might reasonably be questioned” and specifically in any case where the judge has “knowledge of the facts that are in dispute.” Thus, the Commission believes that the judge should recuse in any case against the parents or children for failing to comply with compulsory school attendance laws and in any other civil or criminal case wherein the judge has general knowledge of relevant facts through involvement in Truancy Court. A judge who chooses to be involved in Truancy Court must assess whether such involvement leads to such frequent recusals as to interfere with the proper performance of judicial duties.

The final concern of a judge’s involvement in Truancy Court is whether such involvement to a reasonable person appears to be coercive. While removing the use of courtroom facilities, the use of the word “court” and the judicial robe ameliorate this concern, judges are often known and identified in the community outside the courtroom environment. Any overt or unspoken threat that continued truancy could lead to criminal charges exacerbates the appearance of coercion.

While involvement as either a sole arbiter of Truancy Court or as a member of a Truancy Court committee is problematic in that such conduct runs the risk of being considered coercive and could lead to frequent disqualifications, the judge may participate subject to the following restrictions:

(1) The judge should not wear a robe;

(2) The courthouse or court facilities should not be used for Truancy Court meetings;

(3) The use of the word “court” should not be used as a title for the activity;

(4) The judge should recuse from any juvenile, criminal, or civil case involving the children and parents who appear in Truancy Court;

(5) The Truancy Court should make clear that participation in the program is voluntary and that failure to cooperate with the Truancy Court will not result in punishment.

Whether or not the judge chooses to not serve as a member of the Truancy Court, the judge may still assist the school’s Truancy Court as an advisor and may speak to groups at locations including schools to provide general information about the compulsory school attendance laws and the manner in which such cases are addressed when they come before the juvenile court.