Opinion 19-32

March 14, 2019

Digest:       A part-time judge who is also a full-time college professor may participate in an academic research project analyzing data from the local centralized arraignment part’s first year of operation, and accept compensation from the college for this work pursuant to a grant administered by the office of court administration.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.6(B)(4); Opinions 11-138; 10-115; 99-111; Hurrell-Harring v State of New York, 15 NY3d 8 (2010).

Opinion:

         The inquiring part-time judge also serves as a full-time criminal justice professor at a private college. The division of criminal justice services has approved a $50,000 grant for the college to review and analyze information about the first year of operation of the centralized arraignment part in the college’s county.¹ The office of court administration (OCA) will administer the grant.

         The research team consists of several college professors, including the judge. The team will “examin[e] the data of about 2,200 arraignments” from the part’s first year, focusing on objective criteria such as the number of cases handled each day and night; whether the top charge was a felony or misdemeanor; the court of original jurisdiction; the arresting agency; whether the matter involved an arrest warrant or bench warrant; and whether the defendant was released on bail or on his/her own recognizance. The team will also “examine the time and effort to create” the part. Although the team will not recommend policy changes, the judge anticipates that other counties will use the data to help achieve compliance with Hurrell-Harring v State of New York, 15 NY3d 8 (2010).

         The judge will be paid directly by the college for participating in the research project. The judge says the project will not interfere with his/her judicial responsibilities, and asks if he/she may participate in the grant project as described.

         A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge may engage in extra-judicial activities not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may accept public or private employment not incompatible with judicial office and does not conflict or interfere with judicial duties (see 22 NYCRR 100.6[B][4]).

         The Rules “specifically encourage judges to become involved in extra-judicial activities concerning the improvement of the law, the legal system and the administration of justice” (Opinion 10-115 [brackets omitted]). Thus, as we noted in Opinion 11-138 (citations omitted):

a judge may, subject to certain limitations, serve as a consultant to an academic research project on jurors’ memories; respond to a research survey and participate in a follow-up interview on changes in the judge’s court; and participate in a two day meeting of a non-profit foundation’s research program on adolescent development and juvenile justice and discuss “the judge’s work in the area of juvenile justice and its implication for research, practice and policy.”

Also, a part-time judge may serve on a council “studying ways of improving the criminal justice system in the county,” if it does not impinge on his/her independent decision-making (Opinion 99-111).

         This research project directly relates to improving the legal system, improving the law and administration of justice, as government officials will consider the results in making decisions about how to comply with their constitutional obligations under Hurrell-Harring. As the research will involve aggregate data collection and statistical analysis, it is unlikely to entail commenting on identifiable pending or impending proceedings in any court (see 22 NYCRR 100.3[B][8]). On these facts, we conclude this academic research project is compatible with the judge’s judicial duties. We note the judge will be compensated for his/her research via separate payroll checks from the college as its employee under the grant, thus avoiding any possible appearance of impropriety in the source or nature of payments.²

         Accordingly, we conclude this judge may participate in the research project and be paid by the college for this work . As the judge need not conceal his/her judicial status, we recommend any report issued in connection with the grant use a suitable academic title, and a judicial one, to reflect his/her involvement as a judge and professor working with his/her academic colleagues.

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¹ The judge’s court is also in the same county.

² For example, the payment structure makes clear the grant monies will compensate the judge for the new academic work he/she is undertaking in his/her extra-judicial employment, rather than for any judicial duties he/she previously performed.