Opinion 20-162

October 29, 2020

Digest:    A part-time judge may serve on a subcommittee concerning the establishment of a county-wide centralized arraignment part, even where that subcommittee was created by a task force on which the judge cannot serve due to its apparent immersion in probation department programs or internal policies. The judge may also share their experience conducting off-hours virtual arraignments.

Rules:     22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); Opinions 20-121; 20-99; 18-08; 16-116; 14-139; 06-72; 99-111; 97-02; 95-114.

Opinion:

         A part-time judge asks if they may serve on a subcommittee to examine the creation of a centralized arraignment part and also share their experience with conducting off-hours virtual arraignments as the subcommittee considers what technologies to use. The subcommittee was created by a task force on which the judge cannot serve due to its apparent immersion in probation department programs or internal policies (see Opinion 20-121). We understand the task force reached out to the local magistrate’s association for input on the creation of a centralized arraignment part. While the inquiry does not describe the subcommittee’s membership, we note the overall task force is balanced, rather than one-sided, as it includes prosecutors, law enforcement, and defense counsel, minority and majority party legislators, as well as representatives from the county restorative justice and community empowerment center, a human rights commissioner and a retired town justice.

         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]). A judge may engage in extra-judicial activities that are not incompatible with their judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge may be a member of an organization or governmental agency devoted to improvement of the law, the legal system, or the administration of justice, as long as it is not likely that the entity will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]; see also 22 NYCRR 100.4[C][2][a] [appointment to a governmental committee concerned with issues of fact or policy involving “the improvement of the law, the legal system, or the administration of justice”]).

         It is understood that participation in the broader task force is improper (see Opinion 20-121). However, as noted in Opinion 20-121, it is generally permissible for a judge to participate in a balanced committee designed to improve the law, legal system, or the administration of justice (see e.g. Opinions 99-111 [judge may serve on a Criminal Justice Coordinating Council which will advise the county legislature and other elected officials on certain issues]; 14-139 [judge may express views on how proposed transit changes will affect indigent court users and their ability to comply with court-ordered training, treatment, and probation]).

         In our view, participating in a subcommittee to design and establish a county-wide centralized arraignment part is clearly permissible (see Opinions 95-114 [town justices may participate in “a meeting which involves their courts and the creation of a District Court”]; 16-116 [full-time judge may appear at public meetings of the county legislature and other governmental boards or agencies to advocate for “a centralized district court or arraignment court to speed the process and assure that the People and the defendant are represented”]; 97-02 [part-time judge may publicly comment on a report concerning the feasibility of the creation of a District Court system in the county]; cf. Opinions 18-08 [a judge who is working with prosecutors and defense lawyers to establish a local problem-solving court may ask state legislators for financial support for this project]; 20-99 [court may invite defense bar representatives and the appropriate prosecutorial office to discuss procedures for handling mail-in pleas on traffic infractions]). We assume the subcommittee may discuss ways to enhance efficiency and fairness and how to coordinate with all those affected by its establishment. We can see no impropriety in the judge sharing their experience with conducting off-hours virtual arraignments as the subcommittee considers what technologies to use or adopt in centralized arraignment part.

         Of course, the inquiring judge should abide by the restrictions of Opinion 20-121 and thus should not participate in discussions of probation department programs or internal policies concerning restorative justice, early prevention, and training, or other such matters that could insert the inquiring judge unnecessarily into areas of substantial public controversy or otherwise compromise public confidence in their impartiality (see Opinion 20-121). The judge also should not make any advance commitment to accept or implement any policy recommendations (see Opinion 06-72).