Opinion 19-135

December 12, 2019

Digest:     A town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court while a lawsuit challenging the legitimacy of such arrests in New York’s courthouses remains pending or impending.

Rules:       22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(C)(1); 100.5(A)(1)(iii); Opinion 16-178.

Opinion:

         A town justice asks if he/she may publicly or privately lobby the town board to prohibit U.S. Immigration and Customs Enforcement (ICE) from conducting warrantless arrests in the town court.¹ Alternatively, the judge asks if he/she may advise the town board about the Office of Court Administration’s policy concerning warrantless civil immigration arrests in state-paid courts and explain the reasons behind the policy.³ We understand the ICE directive concerning civil arrests inside federal, state, and local courthouses is now the subject of a federal lawsuit, seeking to enjoin the practice as unlawful and unconstitutional.²

         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]). Judges may publicly address issues involving the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][1]; 100.5[A][1][iii]), subject to generally applicable limitations on judicial speech and conduct. For example, a judge must “not make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]).

         Clearly, policies concerning courthouse arrests are matters deeply affecting the law, the legal system and the system of justice. Indeed, that is essentially the premise of the pending federal lawsuit seeking to enjoin civil immigration arrests in and around New York State courthouses. The question here is thus which rule takes precedence: the prohibition on public comment on pending or impending cases, or a judge’s allowable public speech on matters involving the law, the legal system and the administration of justice.

         The Committee previously grappled with this issue in Opinion 16-178. We said a judicial association must not file an amicus brief with the Court of Appeals concerning a matter purportedly affecting the judiciary as a whole, where “it would be difficult, if not impossible,” for the association to avoid the appearance of “impermissibly adopting ‘the role of an advocate’ [citation omitted]” (id.). We suggested the judicial association could instead seek a statutory change, albeit with a significant caveat (id.):

Finally, on these facts, there is a clear alternative to the judge and judicial association weighing in publicly on a specific pending case: they may propose legislative changes. … However, in so doing, they should be careful not to engage in impermissible public comment on the case currently before the Court of Appeals. … If it is not possible to advocate for a desired statutory change without publicly commenting on a specific, identifiable case, the judge and the judicial association must wait until the case is completely resolved.

         Applying those principles here, we conclude this judge must not seek to convince the town board to adopt a policy concerning civil immigration arrests in the town court while a lawsuit concerning the legitimacy of such arrests in New York’s courthouses remains pending or impending. The issues in this extremely high-profile and controversial lawsuit are identical to those the inquirer wishes to raise. Even if the judge never mentioned the federal lawsuit, it would be difficult, if not impossible, to avoid the perception that the judge was commenting on the case. On these facts, the judge’s proposed alternative approach, of educating the town board concerning OCA’s previously adopted policy on such arrests, is also impermissible until the federal case is completely resolved.

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¹ The town court is housed in a multi-purpose building that also serves as the town hall.

² OCA Directive 1-2019 was issued in April 2019, approximately 15 months after ICE Directive 11072:1.

³ The State of New York and the District Attorney of Kings County filed a complaint for declaratory and injunctive relief against ICE, the Department of Homeland Security, and their respective heads, in September 2019.