Opinion 20-38
April 30, 2020
Digest: (1) A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting, assuming this is a confidential setting with no others present.
(2) Where a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume the emailed discussions are confidential or private and therefore must take particular care to observe generally applicable limitations on judicial speech.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(6); 100.3(B)(6)(c); 100.3(B)(8); 100.3(C)(2); Opinions 20-42; 19-137; 19-120; 19-08; 18-38; 15-209; 15-198; 13-189/14-02; 10-61; 2020 Ann Rep of NY Commn on Jud Conduct at 19.
Opinion:
A judge asks if he/she may discuss pending and impending matters at a magistrate’s association meeting when court clerks are present, along with other judges. The judge also seeks guidance on participating in group discussions by email with everyone on a magistrate’s association contact list, where the list includes many individuals who are neither judges nor court clerks.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). A judge also must “not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” unless an exception applies (22 NYCRR 100.3[B][6]). Significantly, a judge “may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges” (22 NYCRR 100.3[B][6][c]). A judge who properly consults with court personnel or other judges under Section 100.3(B)(6)(c) concerning matters pending before him/her has no obligation to provide the parties with notice or an opportunity to respond (see Opinion 15-209). Moreover, a judge must “not make any public comment about a pending or impending proceeding in any court within the United States or its territories” and must “require similar abstention on the part of court personnel subject to the judge’s direction and control” (22 NYCRR 100.3[B][8]).
Magistrate’s Association Meetings with Court Clerks Present
The judge first asks if he/she and other judges may discuss pending or impending proceedings at a magistrate’s association meeting when court clerks are present. Specifically, the judge asks if this is permissible ex parte communication under Section 100.3(B)(6)(c), as he would be speaking in the presence of court clerks whose function is to aid other judges of the Unified Court System. The judge also asks to what extent, if any, court clerks may participate in the discussions, assuming they are allowed to be present.
We have interpreted Section 100.3(B)(6)(c) to permit ex parte consultation with the now-retired judge who previously presided over a matter now assigned to the inquiring judge (see Opinion 18-38), and with sitting judges who preside in courts other than the Unified Court System (see Opinion 19-08). Clearly, sitting judges who are members of a magistrate’s association may discuss pending and impending matters with each other, for guidance on particular legal or procedural issues, while in attendance at a meeting of their professional association.
The same section allows for consultation with court personnel whose function is to aid the judge. Moreover, we have not construed “court personnel” so narrowly as to prevent a judge from consulting court personnel beyond his/her own staff that report directly to him/her. To the contrary, we said a part-time judge may consult ex parte with court personnel in the City, Town and Village Courts Resource Center and need not disclose these communications to the parties (see Opinion 15-209). Likewise, we see no need to distinguish between a judge’s own court clerk and the court clerks who work for other judges in the magistrate’s association. They are still court personnel whose function is to aid judges of the Unified Court System in carrying out their adjudicative responsibilities.
We conclude the judge may permit court clerks to be present for and participate in discussions concerning legal and procedural issues on pending or impending matters during magistrate’s association meetings. While we anticipate that court clerks will recognize their obligation to maintain confidentiality and to refrain from public comment on pending or impending proceedings, it is incumbent on the judges to remind them of this obligation (see generally 22 NYCRR 100.3[B][8]; 100.3[C][2]).1
It is unclear from the inquiry if other individuals, who are neither judges nor court clerks, are present at these magistrate’s association meetings.2 In light of Section 100.3(B)(6), we believe magistrate’s association discussions about pending or impending cases should be held in a confidential setting and should exclude those who are not judges or court clerks (cf. Opinion 15-198 [although a judge may attend a magistrates’ association meeting held at a local correctional facility, “any portion of the meeting when necessary magistrates’ association business is discussed or transacted should be private, outside the presence of the sheriff, deputies, and correctional officers”]).
Use of Magistrate’s Association Email List for Group Discussions
The judge’s second inquiry involves the use of the magistrate’s association general email contact list for general discussion and freely sharing personal opinions on a wide range of topics, including recent criminal justice reforms. The general email list includes judges, court personnel, and individuals who are neither (see e.g. fn 2, supra).
We have said a judge must not insert himself/herself “unnecessarily into the center of controversy, for example, by taking a position that is ‘so controversial that it is incompatible with the judicial office’” (Opinion 13-189/14-02) and must also comply with generally applicable judicial speech limitations, including the prohibition on ex parte communication and the public comment rule (see 22 NYCRR 100.3[B][6]; 100.3[B][8]). In its present form, the judicial association’s general email list includes individuals who are not judges or court personnel. This judge cannot assume the emailed discussions are confidential or private, and therefore must take particular care to observe all such generally applicable limitations on judicial speech.
Moreover, while judges may publicly express their views on matters concerning the law, legal system or administration of justice (see e.g. Opinions 20-42; 19-120), they must nonetheless be mindful of the need to promote public confidence in their impartiality and their obligation to respect and comply with the law (see 22 NYCRR 100.2[A]; 100.3[B][1]; Opinion 19-137 [town justice may not write the town board expressing his/her personal view that a newly enacted local law was poorly drafted and offering proposed amendments to solve the problem]; 2020 Ann Rep of NY Commission on Jud Conduct at 19 [“The Commission takes this opportunity to remind judges that, whatever their individual views of the law may be, they are obliged under the Rules Governing Judicial Conduct to respect and comply with the law, to be faithful to the law and to maintain professional competence in the law”]).
We see particular risks when judges wish to share their personal opinions on controversial legal topics freely and informally in a public forum. Thus, a judge should not use a general judicial association email contact list that includes non-judges as a discussion platform on any topic that might suggest an appearance of impropriety, serve to erode the public’s confidence in the judiciary’s integrity and impartiality and/or suggest that an individual judge might be inserting him/herself unnecessarily into the center of substantial local controversy.
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1 As always, the judges should be careful to maintain both the reality and the appearance of judicial independence and not delegate, or appear to delegate, their adjudicative duties (cf. Opinion 10-61 [a magistrates’ association should not permit representatives from a town clerks’ association to attend their meeting for the purpose of discussing the enforcement of dog regulations to “ensure consistency between the various towns”]).
2 Such individuals could potentially include spouses whose sole connection to the court system is through marriage, as well as prosecutors, defense attorneys, police officers, or other outsiders.