July 2, 2020
Digest: Where multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in an initiative designed to (a) promote trust and open dialogue between activists and police concerning those incidents and/or (b) recommend changes to current police force deployments, strategies, policies, procedures, and practices.
Rules: NY Const, art VI, § 20(b)(1); Village Law § 3-300(3); Executive Order 203; 22 NYCRR 100.0(S), (U)-(V); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(8); 100.4(A)(1), (3); 100.4(C)(2)(a); 101.1; Opinions 20-96; 19-135; 19-29; 17-66; 17-38; 09-140.
A judge asks if he/she may participate in a county executive’s initiative “aimed at building trust, transparency, and working dialogue between activists and [p]olice” in light of several high-profile, racially charged incidents across the nation involving apparent police misconduct as well as ongoing protests in New York and elsewhere. The group is intended to “bring together protest organizers, law enforcement and other stakeholders to listen and engage in frank conversations about recent events” and “look for ways ... to strengthen [the county]’s community policing model.” So far, participants include “a local mayor and criminal defense attorney, a local law school professor,” law enforcement representatives, a member of the clergy, students and community activists. The group also plans to “engage” the district attorney’s office, the office of minority affairs, faith-based groups, and the human rights commission. For further context, we also note the governor’s Executive Order 203, dated June 12, which apparently requires political subdivisions to convene similar groups to “perform a comprehensive review of current police force deployments, strategies, policies, procedures, and practices, and develop a plan to improve” them by a particular date, at the risk of budget consequences for non-compliance. A significant stated goal of the executive order is to “improve community engagement, and foster trust.”
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 “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B]).1 A judge must uphold the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]) and thus must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extra-judicial activities must be compatible with judicial office and must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A]). In addition, a full-time judge may “not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][a]).
We note, initially, certain similarities between the present inquiry and Opinion 20-96. In both, a county executive seeks to convene a balanced working group or task force (i.e. one representing a diverse range of community interests) following several high-profile, racially charged incidents across the nation involving apparent police misconduct. Broadly speaking, both groups are intended to result in improvements to local policing.
However, we find ethically significant differences resulting in different outcomes under the Rules Governing Judicial Conduct.
First, as the inquiry notes, the working group is primarily expected to “engage in frank conversations about recent events.” This is impermissible for a sitting judge under the public comment rule, as most (if not all) of the “recent events” here involve both pending and impending cases (see 22 NYCRR 100.3[B]).
Second, the initiative intends to facilitate “working dialogue between activists and [p]olice.” In the current environment, such dialogue is virtually certain to be perceived as highly partisan and controversial. Indeed, it would be difficult, if not impossible, for a judge to participate in the proposed working dialogue with activists and police without being seen as aligned in interest with one side or the other. In this regard, we note that, even where a judge wishes to participate in an “apparently non-partisan” March for Science, the judge “must monitor the march’s agenda and publicly reported affiliations and sponsorships” and “must not participate in the march unless the judge determines,” among other things, that the judge’s participation “will not involve the judge in impermissible political activity” or “insert him/her unnecessarily into public controversy” (Opinion 17-38).
Third, as the group will be “looking for ways ... to strengthen [the county]'s community policing model,” it will likely be advising the county executive about specific policies or procedures a police department should adopt or prohibit. This goes far beyond the conduct authorized in 20-96, and will insert the judge “into the center of matters of substantial, local controversy” (Opinion 19-29). We note, in this regard, that while judges may be called upon, in their judicial capacity, to gauge the constitutionality of specific uses of force in cases that come before them, broad policy decisions concerning use or prohibition of specific law enforcement techniques are generally the province of the legislative or executive branches (cf. Opinion 19-135 [a town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court while a lawsuit challenging the legitimacy of such arrests in New York’s courthouses remains pending or impending]).2
Fourth, if the task force is organized pursuant to Executive Order 203, we note additional issues. From an ethics perspective, the judge’s participation (where not mandated by law) could raise separation-of-powers concerns due to the budget implications if the county fails to adopt the group’s recommendations (cf. Opinion 17-66 [a quasi-judicial official’s service on JCOPE may raise separation-of-powers concerns, to the extent JCOPE has the power to investigate and discipline ethics violations in the other branches of government,” particularly where “the governing statutes do not appear to mandate judicial branch participation”]).3
Thus, we conclude that judges’ participation in the county executive’s initiative is impermissible.
1 A “pending or impending proceeding” encompasses one that “has begun but not yet reached its final disposition” (22 NYCRR 100.0[U]) or “is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).
2 From this perspective, the committee appears to be “concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][a] [emphasis added]) and thus is also impermissible for a full-time judge for this separate and independent reason.
3 We note there could also potentially be legal barriers for some judges, if appointments pursuant to the executive order involve a “public office or trust” within the meaning of NY Const, art VI, § 20(b)(1) (affecting certain full-time judges) or a “village office” under Village Law § 3-300(3) (see Opinion 09-140 [noting that a “village justice is prohibited by law from serving in both an elective and an appointive village office”]). However, we cannot resolve these or other legal questions concerning the effect of the executive order (see 22 NYCRR 101.1).