Opinion 19-63

June 20, 2019

Digest:         (1) A town justice may not agree to a private meeting with the town comptroller and town board member(s) for the express purpose of explaining and justifying an apparent decrease in revenue.

(2) This prohibition does not preclude the judge from communicating with town officials concerning the amount of fines and fees collected and/or the court’s budgetary needs, as permitted by statutes and prior opinions.

(3) The judge may also publicly discuss the court’s operations, including a decrease or increase in revenue, at a town board meeting or public forum, provided he/she (a) is careful not to cast doubt on his/her integrity, impartiality, and independence in adjudicating matters that could potentially result in revenue for the town and (b) avoids impermissible comment on any identifiable pending or impending case before him/her.

Rules:          22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A)-(C); 100.3(B)(1); 100.3(B)(6) - (8); 100.3(B)(9)(a); Opinions 16-104; 16-85; 16-55; 15-188; 13-124/13-125/13-128/13-129; 07-22; 99-104; 89-129.

Opinion:

         The town comptroller has asked to meet privately with the town justices and one or more town board members to discuss an apparent decrease in court revenue over the past year. The inquiring judge asks if he/she may participate in the proposed meeting to discuss and explain why court revenue has decreased.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). A judge must “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]), must not be “swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B][1]), and must not “make pledges or promises of conduct in office that are inconsistent with the impartial performance of the adjudicative duties of the office” (22 NYCRR 100.3[B][9][a]). A judge must not allow political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]).

         As we have observed, the “state constitution establishes the state’s three branches of government and vests specific bodies with authority to discipline, remove, or impeach judges” (Opinion 16-55 [citations omitted]). In light of this constitutional scheme, we advised “a town judge’s voluntary submission to the authority of the town board for discipline and/or removal would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence” (id.). In Opinion 99-104, we likewise advised that a village justice must not attend “monthly meetings of the village government’s department heads which are presided over by the Mayor.” As we explained (id.):

The judge’s attendance at the monthly meetings would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor. Such a role would not only jeopardize the independence of the judiciary but would also give rise to an appearance of impropriety, contrary to the Rules.

         Further, even if other branches of town government imagine the justice court as a revenue center, the Rules Governing Judicial Conduct preclude the justices from acquiescing in that concept of the court (cf. Opinion 16-55 [noting the judicial ethics rules are “promulgated pursuant to authority constitutionally vested in the very highest levels of the judiciary itself”]). Judges must preside fairly and impartially in every case, applying applicable law to the facts before them (see generally e.g. 22 NYCRR 100.2[A]; 100.3[B][1]; 100.3[B][7]; 100.3[B][9][a]). Their judicial role ethically precludes them from adopting or pursuing revenue goals in deciding a defendant’s guilt or innocence, in approving guilty pleas, or in assessing fines and penalties where legally appropriate. Indeed, we have recognized that a judge may not even “consider, as a factor in evaluating a particular [proposed plea] agreement, whether the proceeds of an otherwise fair and lawful traffic fine, accrue to the town versus state treasury, assuming either is legally authorized to receive revenue from traffic fines” (Opinion 07-22).

         Relatedly, as we explained in Opinion 13-124/13-125/13-128/13-129 (citations omitted):

The Committee has recognized the danger that a judge’s impartiality will appear to be compromised when the circumstances of a proposed private meeting with the judge suggest that the meeting is essentially “an attempt to promote a particular agenda in connection with the judge’s judicial decision-making in certain matters that will come before the judge” or otherwise to impermissibly “influence the judge’s future [judicial] conduct.” Thus, for example, the Committee has advised that a judge who has dismissed a number of parking tickets issued for illegal overnight parking must not meet privately with the Chief of Police and the Commissioner of Public Works for the municipality where he/she presides to discuss those decisions….

         In our view, the proposed private meeting between the town justice and the town comptroller and town board member(s), for the express purpose of explaining and justifying an apparent decrease in revenue, would undermine public confidence in the court’s integrity, impartiality, and independence. For example, it would likely create a public impression that the justice court is a town “department” that must either meet certain revenue goals or account for its failure to do so. It could further create an impression that the town comptroller and/or town board are in a position to influence the judge’s judicial conduct or judgment in vehicle and traffic matters or other cases where fees or fines may legally be imposed. For all these reasons, the judge must decline to participate in the proposed meeting as described.

         We emphasize, however, that judges may meet with town employees and officials in the normal course of their duties, including in the budgeting process (see e.g. Opinions 89-129 [town justice may appear before the town board to request additional funds to carry out court functions]; 16-104 [prohibition on a village justice or court clerk attending the mayor’s monthly meetings with village “department heads” does not prevent them from attending “an annual budget meeting” or other such occasional meetings “where the judge determines the court’s interests need to be represented”]). They may also provide information concerning the court’s expenses and revenues to town officials or the general public, as noted in Opinion 16-104:

Nor does [this opinion] prohibit a justice court clerk from complying with applicable statutes (see e.g. Opinion 11-92 [noting that a court clerk’s duties may include “electronically filing monthly audit and control reports; and presenting monthly reports to the municipality’s chief fiscal officer”]) or the judge from providing status reports to the village government where legally required and/or ethically permitted (see e.g. Opinion 15-215 [a justice court “may, subject to all applicable statutory provisions concerning confidential information or sealed records, present a monthly status report to the town or village board at a public board meeting”]).

Thus, the present opinion does not preclude the judge from communicating with town officials concerning the amount of fines and fees collected and/or the court’s budgetary needs, as permitted by statutes and prior opinions. Further, we believe the judge may publicly discuss the court’s operations, including a decrease or increase in revenue, at a town board meeting or public forum, provided he/she (1) is careful not to cast doubt on his/her integrity, impartiality, and independence in adjudicating matters that could result in revenue for the town and (2) avoids impermissible comment on “any identifiable pending or impending case before the judge” (Opinion 13-124/13-125/13-128/13-129; see generally 22 NYCRR 100.3[B][6] [ex parte communications rule]; 100.3[B][8] [public comment rule]).

         With respect to the inquiring judge’s final question, whether he/she may “ever” meet with the town comptroller, we cannot provide meaningful guidance as the question is general in nature and is necessarily subject to multiple factual variations (see e.g. Opinions 16-85; 15-188 [last paragraph]).