Opinion 15-198

January 28, 2016

Digest:         A judge may attend a magistrates’ association meeting held at a local correctional facility, subject to certain limitations.

Rules:          22 NYCRR 17.1; 17.1(a); 17.1(d)(3)(i)-(iii); 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1), (6), (8); Opinions 15-99; 14-19; 11-85; 10-61; 10-13; 06-154/167.

Opinion:

         The inquiring judge asks whether he/she may participate in a magistrates’ association meeting to be held in a secured part of a sheriff’s office in a local correctional facility. There will be a brief business meeting, an optional jail tour led by a corrections officer, and an optional informal gathering and discussion among judges and the sheriff’s office.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not convey, or permit others to convey, an impression they are specially positioned to influence him/her (see 22 NYCRR 100.2[C]); and must be faithful to law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]). A judge must also uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]).

         This Committee has advised that a magistrates’ association may 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” (Opinion 10-61). Similarly, the Committee has advised that Family Court judges should not participate in regularly-scheduled meetings with the representatives of a government agency which represents the interests of children and families, where the meetings involve discussion of substantive and procedural legal issues and do not include other agencies and parties representing other interests which exist in Family Court matters (Opinion 06-154/06-167). In these and other such scenarios, particularly where the “goal in meeting with the judge seems to involve an attempt to promote a particular agenda in connection with the judge’s judicial decision-making” in matters that will come before the judge (Opinion 11-85), a judge’s participation in a one-sided meeting could potentially compromise at least the appearance of judicial impartiality and independence (see generally 22 NYCRR 100.0[S]).

         However, the Rules of the Chief Judge affirmatively require town and village justices to (22 NYCRR 17.1[d][3][i]-[iii]):

Visit one facility in each of the following categories if located in the county where the justice is sitting:

(i) a facility operated by a county or municipality for the confinement of persons convicted of a misdemeanor or violation;

(ii) a facility operated by a county or municipality for the detention of persons accused of an offense; and

(iii) a facility certified by the New York State Office of Children and Family Services as a juvenile detention facility for the reception of children.

         This so-called “jail visitation” rule intends “to ensure that every judge or justice [is] familiar with those facilities where the judge or justice is authorized to direct the detention, treatment, examination or confinement of any person in connection with Criminal or Family Court proceedings” (22 NYCRR 17.1[a]).

         In this context, the Committee sees no ethical impropriety with a magistrates’ association holding a meeting at a jail or other rule-applicable facility, as this will help facilitate compliance with the “jail visitation” requirements (see 22 NYCRR 17.1; cf. Opinion 15-99 [magistrates’ association may tour state police headquarters]). The sheriff, deputy sheriffs and/or county correctional officers responsible for facility oversight will necessarily address the judges, lead the tour, describe what the judges are viewing, and answer questions posed by the visiting judges. However, the judge and/or the magistrates’ association should discourage law enforcement demonstrations, such as “training on how to process a DWI arrest” (Opinion 15-99).

         To avoid any improper appearance, 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. It would be improper to invite only law enforcement interests, but not other entities, to the portion of the magistrates’ association meeting that focuses solely on association business (see generally Opinions 11-85; 10-13; 06-154/06-167), as it potentially has an appearance of “a special relationship with law enforcement” (Opinion 14-19).

         As for the planned informal gathering and discussion with the sheriff’s office, although physically separate from the jail tour, the Committee anticipates the sheriff and staff will discuss jail initiatives and other facts about the jail, just as they would on the jail tour. This is permissible. By contrast, it would be inappropriate for the sheriff, deputies or officers to engage in advocacy, i.e. to “attempt to promote a particular agenda in connection with the judge’s judicial decision-making” (Opinion 11-85), or to permit ex parte discussions of pending or impending cases (see 22 NYCRR 100.3[B][6] [judge “shall not initiate, permit, or consider ex parte communications”]).

         As always, the judge should be mindful of other generally applicable rules governing judicial speech and conduct, such as the rule prohibiting public comment on a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]).