Joint Opinion 11-09/11-12

April 28, 2011


Digest:         (1) A judge may conduct after-hours arraignments in a public area of a police facility if there are valid security reasons to do so and if holding such proceedings at the police facility rather than the local court facility is not in violation of law. (2) A judge may conduct after-hours arraignments in other areas that are open to the public, such as outdoors, only if such locations are legally permitted and administratively approved and if it is likely that the judge will be able to maintain order and decorum. (3) Other questions relating to where a judge may conduct after-hours arraignments are primarily legal and administrative in nature.


Rules:         Judiciary Law §4; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(1)-(2); 101.1; Opinions 07-186; 03-112; 98-150 (Vol. XVII); 96-100 (Vol. XIV).



         Two City Court Judges ask about permissible locations for conducting arraignments outside of normal court hours, when court staff are unavailable and the judges must instead rely on police officers to provide security. One judge (11-09) states that his/her courtroom is located inside a municipal building that also houses certain other city offices, including the police department. Although the building is locked after business hours, the police can provide access to the courtroom for arraignments. The judge states that “the only other rooms available to me” in the building after hours, besides the courtroom, are “the ‘interview room’ or ‘booking room’ inside the police station.” According to the judge, the police routinely grant access to any members of the public who ask to attend after-hours arraignments, whether the proceedings are conducted in the courtroom or in the interview room. The judge states that the “vast majority” of after-hour arraignments occur in the courtroom, but “on rare occasions” this is not possible because “the arresting officer believes that the defendant is either too violent or dangerous to be safely escorted” to the part of the building that contains the courtroom. The judge notes that on “even rarer occasions,” the courtroom is unavailable because it is already in use by other government officials or agencies. The judge asks whether it is ethically permissible to conduct after-hours arraignments inside the police station’s interview or booking room in one or both circumstances.


         The second judge (11-12) asks whether he/she may conduct after-hours arraignments in a secure police holding cell which is not open to the public. Alternatively, the judge asks if he/she may conduct arraignments in an area open to the public, such as in a public hallway or outdoors, or whether arraignments must always be conducted in a courtroom. Finally, the judge asks whether he/she is required to conduct all arraignments on the record.


         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge also must respect and comply with the law (see 22 NYCRR 100.2[A]), be faithful to the law (see 22 NYCRR 100.3[B][1]), and require order and decorum in proceedings before the judge (see 22 NYCRR 100.3[B][2]). The judicial duties of a judge take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).


         The instant inquiries raise mixed questions of ethics, law, and administrative policy. As the Committee has previously advised (Opinion 98-150 [Vol. XVII]):


[B]oth statute and rule address the question of the location of court proceedings. Judiciary Law §4, for example, mandates that the sittings of every court must be in a location where the public may freely attend. As to local courts, in particular, the Uniform Justice Court Act states that a local justice ‘may hold court anywhere within the municipality.’ UJCA §106(1). Further, section 214.2(a) of the Uniform Civil Rules for the Justice Courts provides that ‘It is the policy that the public is best served by justice courts which function in facilities provided by the municipality . . . When facilities are provided by the municipality, the sessions of the court shall be held therein.’


The purpose of all such provisions is to assure that court proceedings are held in official public facilities and not at private locations where unfettered public access may be jeopardized or where the perception of the public nature of what is occurring may be obscured.


(see also Opinion 03-112 [discussing Judiciary Law §10 and §13]).


         With due deference to the legal and administrative issues involved, the Committee has previously considered the ethical propriety of after-hours and/or out-of-courthouse arraignments on several occasions. In Opinion 96-100 (Vol. XIV), a town justice asked whether he/she could, at the prosecution’s request, arraign a defendant at the judge’s home or business office if both are within the jurisdiction of the court. The Committee concluded that it was ethically impermissible for a judge to thwart the defendant’s right to public proceedings and the public’s right to attend and observe legal proceedings, merely for the judge’s or the parties’ convenience (see id.; 22 NYCRR 100.3[A]).


         In Opinion 98-150 (Vol. XVII), a town judge asked whether he/she could arraign certain criminal defendants in a publicly accessible courtroom located within a maximum security prison facility. These particular defendants were already inmates in the facility, and “the request was made in order to meet security concerns” associated with transferring the inmates to a less-secure local court facility. The Committee noted that use of prison facilities does not necessarily mean that “unfettered public access may be jeopardized” or that “the perception of the public nature of what is occurring may be obscured” (id. [noting that a prison is, in fact, “an official governmental structure”]). The Committee therefore held that a judge may arraign prison inmates in a courtroom open to the public in a public area of a prison, “provided that there are valid security reasons to do so” and that holding such proceedings at the prison rather than the local court facility is not in violation of law (id.).


         In Opinion 03-112, a city court judge asked whether he/she could arraign certain criminal defendants in a publicly accessible room located within a park police facility. The anticipated defendants would be concert-goers arrested “for various degrees of rowdiness or violence” following a large outdoor rock concert, at a time when the court facility is closed and “no personnel are available for maintaining security.” The judge noted that, absent such arraignments, “the [park] police office has no adequate detention facility and prisoners are held handcuffed in a large room until court opens the following day” and “the park police are neither by training or experience as able as regular police in securing, handling, transporting and otherwise tending to prisoners when held over night” (id.). The judge asked the Committee whether it would be permissible, under the circumstances, to hold arraignments at a public building that houses the park police facility, “in a room which is part of the park police facility but separated from it by a courtyard.” The judge stated that the room “would be set up as a court and will be open to the public.” The Committee concluded that, in light of the “inadequacy of detention facilities as well as attendant security issues,” it would not be ethically improper to hold these particular arraignments as the judge proposed, and as approved by the Administrative Judge (see id.).


         Finally, in Opinion 07-186, a judge stated that he/she “regularly receive[s] requests” from the police to conduct after-hours arraignments at locations that, according to the judge, “are not open to the public” and where the proceedings would not be recorded. The judge noted that the police regularly assert “a variety of reasons” for such requests, “including a defendant’s mental or physical health issues, a lack of personnel to supervise a detained defendant, or inadequate space for detention” (id.). The Committee declined to answer, because the issues raised in the inquiry were primarily legal and administrative in nature (see id.).


         Here, too, the Committee concludes that a judge must adhere to any legal requirement concerning the location for holding court (see 22 NYCRR 100.2[A]; 100.3[B][1]; Opinions 07-186; 03-112; 98-150 [Vol. XVII]; 96-100 [Vol. XIV]). Whether in a particular instance a police station meets those legal requirements is primarily a legal or administrative question, which the Committee is not authorized to answer (see 22 NYCRR 101.1; Opinion 98-150 [Vol. XVII]). However, assuming that it is legally permissible to hold arraignments at publicly accessible locations inside the police department, such as an interview or booking room (11-09) or public hallways (11-12), the Committee sees no ethical impediment to doing so, provided the security reasons for doing so are bona fide and not simply a matter of convenience and preference (see Opinions 03-112; 98-150 [Vol. XVII]; see also 22 NYCRR 100.3[A] [judicial duties must take precedence over all the judge’s other activities]).


         With respect to holding after-hours arraignments in other locations that are open to the public, such as outdoors (11-12), the Committee also notes that the judge must require order and decorum in proceedings before the judge (see 22 NYCRR 100.3[B][2]). Thus, any such locations must not only be legally permitted and administratively approved, but they also must be settings where the judge will be able to maintain order and decorum.


          In the Committee’s view, all remaining questions raised in these inquiries (11-09 and 11-12) are primarily legal and administrative in nature1. Because the Committee is authorized to answer questions concerning judicial ethics (see 22 NYCRR 101.1), such legal and administrative questions are outside the Committee’s jurisdiction and therefore the Committee cannot respond (see Judiciary Law §4; Opinion 07-186).        






      1With respect to the further inquiry in 11-12, on May 21, 2008 the Chief Administrative Judge issued an Administrative Order effective June 16, 2008 that requires all town and village courts of the Unified Court System to mechanically record all proceedings that come before the courts.