Opinion 15-47
April 23, 2015
Digest: (1) Whether a judge may require, as a condition of joining a treatment court program that the individual must agree to participate in an exercise program raises primarily administrative and/or legal questions which the Committee cannot answer. (2) Under these circumstances, a treatment court judge should not deliberately attend or participate in an exercise program together with treatment court participants.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.3(B)(6)(d); 100.3(E)(1)(e); 100.4(A)(1), (3); 101.1; Opinions 14-151; 09-52; 08-191; 08-177; 04-88; 02-77; 2013 Ann Rep of NY Commn on Jud Conduct 252.
Opinion:
A judge presiding in a treatment court asks if he/she may require individuals to engage in an exercise program as a condition of participating in the treatment court, absent a medical excuse. The judge also asks if he/she too may attend and participate in the same exercise program along with the treatment court participants, provided each participating defendant “consents to ex parte communications ... during the exercise session.”
A judge must always avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]), and therefore a judge must not engage in extra-judicial activities that “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][3]). A judge must not initiate, permit, or consider ex parte communications, or consider any communications to the judge made outside the presence of the parties or their lawyers concerning a pending or impending case, except as permitted by rule or law (22 NYCRR 100.3[B][6]).
The Unified Court System has stated that “[i]n return for a promise of a reduced sentence, appropriate non-violent addicted offenders are given the option of voluntarily entering court-supervised treatment. Its rules and conditions are clearly stated in a contract the defendant enters into with the defense attorney, the district attorney, and the court” (Drug Treatment Courts, “Overview”). As the Committee has previously noted, the treatment courts “eschew the traditional adversarial court model in favor of a cooperative one. These courts are designed to encourage defendants to stop using drugs and to become law abiding, productive members of society. The goal for everyone involved is the defendant’s recovery, and all the government’s resources are brought to bear to help achieve this goal” (Opinion 08-191). Development of this cooperative court model has involved numerous administrative policy determinations (see e.g. Opinion 04-88).
Under these circumstances, the Committee concludes that whether a judge may require participation in an exercise program as a condition of participation in a treatment court presents primarily administrative and/or legal issues, which are beyond the Committee’s jurisdiction to address (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]; cf. Opinion 08-177 [use of court funds to purchase items of nominal value to reward participating defendants in a problem solving court “raises administrative, not ethics, issues”]).1
With respect to the second question, the Committee believes it would be inappropriate for the inquiring judge to deliberately attend and participate in an exercise program together with treatment court participants, even if the participants have consented to ex parte communications with the judge during the exercise sessions.2 As the Committee explained in Opinion 14-151:
a judge may not serve as a mentor to a teenager who recently appeared before the judge as the respondent in a Persons in Need of Supervision truancy proceeding and may not rent an apartment to a litigant who is currently before the judge, even where the judge’s intention is to rent the apartment “at less than fair market value” to help “protect the litigant from the onerous terms of the proposed partial liquidation of a structured settlement annuity.” A judge also may not accept an invitation from the child of two murder victims to attend “a luncheon to thank friends and neighbors for their love and support,” where the judge presided over the trial over a year ago[,] or agree to meet with a crime victim after a concluded criminal trial “in order for the victim to speak to the judge about the history of abuse he/she experienced before the trial and to thank the judge for considering the victim’s views at the time of sentencing.” In each of these instances, the Committee concluded that the judge’s proposed personal interaction with a litigant concerning the subject matter of the case that was (or had been) before the judge would, at the very least, create an appearance of impropriety [citations omitted].
Here, too, particularly if the exercise program is mandatory for treatment court participants, the judge’s proposed attendance could readily create an appearance of impropriety. For example, the judge’s attendance could give the judge inappropriate extra-judicial knowledge of a participant’s compliance or non-compliance with conditions imposed by the court (cf. 22 NYCRR 100.3[E][1][e] [judge is disqualified if he/she is likely to be a material witness in the proceeding]), and thus may cast doubt on the judge’s capacity to act impartially as a judge in matters pending or which may come before the judge (see 22 NYCRR 100.4[A][1]).
To the extent the judge would interact with defendants in an informal setting outside the presence of counsel, the judge could inadvertently elicit or receive damaging admissions from defendants (cf. 2013 Ann Rep of NY Commn on Jud Conduct 252, 258 [“Instead of allocuting the defendant as to the proposed pleas, respondent questioned him about drugs he allegedly threw away, potentially eliciting admissions to more serious crimes....”]). Moreover, any ex parte communications which may occur directly between the judge and a treatment court participant during the class would also be entirely unrecorded and unmonitored by counsel for either side, leaving both the judge and the defendant potentially vulnerable to imperfect recollections and innocent misunderstandings. This could lead to, among other things, unnecessary challenges to the judge’s decisions at subsequent compliance hearings or in other forums. Thus, the judge’s participation in an exercise class with individuals who are appearing before the judge may interfere with the proper performance of judicial duties (22 NYCRR 100.4[A][1]) and create an appearance of impropriety (22 NYCRR 100.2).
Thus, the inquiring judge should not deliberately attend or engage in exercise programs with treatment court participants.3
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1 The Committee assumes that the inquiring judge’s proposed condition, if permitted, would be implemented in a manner that does not impermissibly promote any commercial interest (compare Opinion 02-77 with Opinions 09-52; 08-177).
2 The consent of only one party to ex parte communications is not sufficient (see 22 NYCRR 100.3[B][6][d] [a judge may confer separately with the parties and their lawyers on agreed-upon matters “with the consent of the parties”]).
3 The Committee notes that the present inquiry involves a treatment court judge deliberately seeking to join treatment court participants in an exercise program the defendants would be required or strongly encouraged to attend in connection with their choice to participate in the treatment court.