Opinion 20-202 (Revised and Amended)
January 28, 2020
Digest: After receiving any administrative approvals that may be required, judges may collaborate with the Historical Society of the New York Courts on a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.
Rules: Judiciary Law §§ 77-78; 212(1)(n), (u); 212(2)(l); 22 NYCRR 80.1(b)(14); 80.3(b)(4); 100.2; 100.2(A); 100.2(C); 100.3(B)(4)-(5); 100.4(C)(3)(b)(i); 100.4(C)(3)(b)(iii); 101.1; Opinions 11-28; 09-167; 06-117.
The inquiring judges, members of a court’s committee on bias, wish to make their courthouse more inclusive and educational by contextualizing some of the existing art and memorials and installing new thematic artworks created by artists who come from marginalized groups. As they explain, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.” Thus, the judges seek to contextualize existing courthouse art by enlisting the aid of scholars of legal history and architecture to help create signage and other materials that would “interrogate our public art and place it in the context of our nation’s history.” They ask if they may work with the Historical Society of the New York Courts to achieve this goal. The judges would prepare written plans for the project, and the Society would apply for grants. Once any such funds are received, the judges would collaborate with the Historical Society in their allocation.
The Historical Society is a not-for-profit organization “comprised overwhelmingly of lawyers and judges, joined together to preserve the legal history of New York State and to foster scholarly understanding and public appreciation of the history of the judiciary and bar” (Opinion 06-117). For example, the Society sponsors continuing legal education programs for lawyers and judges and publishes a peer-reviewed scholarly journal. It has also published several books, including a biographical compilation of the judges of the Court of Appeals. We have previously opined that the Historical Society functions as a bar association (see id.).
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Thus, while a judge may neither lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) nor personally participate in the solicitation of funds (see 22 NYCRR 100.4[C][b][i]), a judge is permitted to make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][b][iii]).
We have said a judge may accept an artwork from a charitable foundation on behalf of the Unified Court System and display it in a courtroom (see Opinion 09-167). Likewise, a judge may explore ways to raise money to preserve and display historical photographs in the courthouse (see Opinion 11-28). The judge must not, however, personally apply for grants and all such activities are subject to appropriate administrative approvals (see id. [“the Chief Administrative Judge ... is designated the state’s agent to accept any grant or gift for the purpose of carrying out his/her responsibilities”]; Opinion 09-167).
The proposed project, as described, is ethically permissible. Indeed, it appears to support the court system’s overall efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary (cf. 22 NYCRR 100.3[B]- [judge’s obligations to curb bias and prejudice]). Assuming the project receives any necessary administrative approvals, the inquiring judges may collaborate and cooperate with the Historical Society in creating a written plan to provide historical context to the public art at their courthouse and/or install new thematic artworks, for the Historical Society to use in its grant proposals. Once any such funds are acquired, the judges may likewise collaborate with the Historical Society in their allocation.
We take no position on what administrative approvals or procedures are or may be required, whether in terms of authorizing and implementing the project or accepting any gifts or grants to be used in the project, as such matters involve quintessentially legal and/or administrative questions (see e.g. Judiciary Law §§ 77-78; 212[n], [u]; 22 NYCRR 80.1[b]; 80.3[b]), rather than ethical ones (see generally Judiciary Law § 212[l]; 22 NYCRR 101.1).