June 17, 2021
Digest: A judge may not monitor police communications on police scanners or police scanner apps for the purpose of learning who has been arrested in the judge’s jurisdiction and will likely come before the judge’s court, as such activity deliberately and purposefully exposes the judge to ex parte information about pending or impending cases in the judge’s court, exclusively from a law enforcement perspective.
Rules: 22 NYCRR 100.0(V); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); 100.4(A)(1)-(3); Opinions 15-99; 14-77; 03-45.
A town justice asks if it is ethically permissible to use police scanners or police scanner apps to “see [who has] been arrested” in the judge’s jurisdiction and thus whether the judge has “any cases coming up.”
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must always act to promote public confidence in the judiciary’s impartiality (see 22 NYCRR 100.2[A]) and must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on their capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge 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]).1 A judge is disqualified in matters where the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E]), including where the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][a][ii]) or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][e]).
We have advised that “a judge ‘must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement’ in the judge’s extra-judicial activities” (Opinion 14-77 [citation omitted]). Thus, we have said a magistrate’s association may tour state police headquarters, but “should not observe law enforcement training on how to process a DWI arrest at the state police headquarters” (Opinion 15-99). Our core concern was that the judges’ proposed in-house observation of internal law enforcement training “could create an appearance of impropriety, as the public is likely to perceive that law enforcement officials are being given special access to the judges in order to demonstrate the ostensibly proper way to process such an arrest” (id.). Likewise, we have said a judge should not participate in a “ride along” program with the local police department, even though the program “is made available to all public officials and citizens” (Opinion 03-45). We concluded that the judge’s participation would nonetheless “violate the judge’s obligation to uphold the integrity and impartiality of the judiciary and avoid impropriety and the appearance of impropriety” (id.).
The present inquiry introduces an element of even greater concern, as the judge wishes to affirmatively seek out advance information about cases before the judge’s court, by listening to police recordings of the arrests as they occur. In essence, this extra-judicial activity would, by design, expose the judge to ex parte information about impending cases in the judge’s court. We believe this would create a strong appearance of impropriety and could raise reasonable questions about the judge’s impartiality.
Accordingly, we conclude it is not permissible to monitor police communications on police scanners or police scanner apps for the specific purpose of learning who has been arrested in the judge’s jurisdiction and will likely come before the judge’s court, as it deliberately and purposefully exposes the judge to ex parte information about pending or impending cases in the judge’s court, exclusively from a law enforcement perspective.
1 A proceeding is “impending” when it is “reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).