Opinion 22-137
September 8, 2022
Digest: (1) A judge may not permit the court clerk to compile information for the sheriff’s office about defendants who have missed court appearances, but may permit sheriff’s office personnel to access court records in the same manner as other members of the public in accordance with applicable law. (2) A judge may permit the court clerk to sign a supporting deposition prepared by the sheriff’s office concerning a defendant’s missed court appearances, based on information of public record contained in the court files, provided the judge concludes it is legally permissible for the court clerk to do so. (3) Where the prosecutor thereafter brings a new bail-jumping charge based on that supporting deposition, and seeks an arrest warrant on that charge, the judge may preside in the matter if the judge can be fair and impartial.
Rules: 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(E)(1); Opinions 15-217; 15-215; 15-115; 14-154; 13-183; 13-19; 10-150; 96-150; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring village justice states that the county sheriff is attempting to clear a backlog of criminal cases where the defendant was charged and arraigned but subsequently failed to appear. The sheriff’s office has asked the village court clerk (as the custodian of records) to provide all dates of missed appearances and then sign a supporting deposition. The sheriff would then provide the packet to the sitting judge to sign an arrest warrant for a new count of bail jumping, which is a bailable offense. The judge notes that both judges of the village court share a single village court clerk. The judge asks if it is permissible for the court clerk to (1) research and provide this information directly to law enforcement and/or (2) sign a supporting deposition that will be used to support a warrant that will come before the judge. If the court clerk may sign the supporting deposition, the judge further asks (3) if it is permissible to preside in the bail-jumping case, given that the same court clerk serves both justices.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]), and must preserve the judiciary’s independence (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 also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where disqualification is not mandatory, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).
1. May the judge permit the court clerk to provide the sheriff’s department with all dates on which criminal defendants missed appearances?
We have advised that, absent a legal requirement, a judge “may not create, maintain and/or produce information about cases specifically and exclusively for a prosecutor’s benefit” (Opinion 14-154). Indeed, as summarized in Opinion 13-183 (citations omitted):
The Committee has advised that judges “must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office.’” For example, a court should not create or compile a list of “scoffed” defendants at a local law enforcement agency’s request; should not comply with a district attorney’s request to review lists of cases compiled by the district attorney’s office and indicate the status of each case for the district attorney’s convenience; should not provide a district attorney with an annotated court calendar in advance of court night indicating each defendant’s prior driving record; and should not provide the district attorney each month with a list of all open cases pending in the justice’s court. The common thread throughout these opinions is that collecting or preparing information “specifically and exclusively for the benefit” of the prosecutor could compromise public confidence in the judiciary’s integrity, impartiality and independence, and create an appearance of impropriety.
We have applied the same principle to similar requests from law enforcement agencies. Thus, we said a judge may not produce a list of vehicle and traffic defendants that the court has reported to the Department of Motor Vehicles to suspend their drivers’ licenses for failing to pay a fine or failing to appear in court (see Opinion 13-19); provide the local police department with a “monthly report cataloging the number of arrests, parking tickets, traffic tickets and calls for service” involving entities such as state and local police, sheriff’s department, and park police (Opinion 15-215); fax a copy of the court’s weekly calendar to the Department of Homeland Security “for their review and determination in what defendants may be potential risks or illegal aliens, for [the] office to pursue” (Opinion 15-217); or notify police officers of the dates of trials at which they may be called to testify (see Opinion 96-150).
Here, too, we conclude the judge must not permit the court clerk to compile information about which defendants have missed court appearances for the sheriff’s office.
Of course, “if the records the law enforcement agency seeks are available to the public, agency staff may access them in accordance with applicable law” (Opinion 13-19; accord e.g. Opinion 13-183 [judge may permit the local prosecutor to access court files in the same manner as all other attorneys and members of the public, in accordance with applicable law]).
2. May the court clerk sign a supporting deposition concerning a defendant’s missed court appearances?
As discussed above, we anticipate the court clerk will not voluntarily compile information for the sheriff’s office concerning a defendant’s missed court appearances. However, assuming the sheriff’s office prepares a supporting deposition based on court records, we conclude there is no appearance of impropriety for a custodian of records to testify about those records, to the extent legally permitted.
We have recognized that a judge with relevant personal knowledge may voluntarily testify as a fact witness, and we have extended similar principles to a court clerk (see Opinion 15-115 [court clerk who was formerly employed as the police chief’s confidential secretary may voluntarily provide information to the police department, like a fact witness would, concerning the meaning and context of the notes the court clerk had made during that former employment]).1
Here, too, if it is legally permissible for a court clerk to sign the supporting deposition, we conclude it is ethically permissible as well.
3. May the judge thereafter preside in a new bail-jumping case?
The final issue is whether the judge may preside in a new bail-jumping case brought by the prosecuting agency with the court clerk’s supporting deposition as custodian of court records. We note that the proposed testimony does not involve the court clerk’s personal interests or any extra-judicial knowledge or observations. Rather, as described, the testimony will exclusively concern matters of public record in the court files and will be offered by the court clerk in their official capacity as the court’s custodian of records. Absent any unusual factors creating an appearance of impropriety, the judge’s impartiality cannot “reasonably be questioned” on this basis (22 NYCRR 100.3[E][1]). Somewhat analogously, we have advised that a judge who believes they can be fair and impartial “may preside when the court clerk testifies pursuant to subpoena about the defendant providing proof of compliance with a condition of the defendant’s sentence” (Opinion 10-150).
We thus conclude the judge may preside as long as the judge can be fair and impartial. Because disqualification is not mandatory, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]) even if a party objects to the judge’s participation. Moreover, on these facts, the judge need not insulate the court clerk from the matter.
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1 In addition, a court clerk “should comply with a lawful subpoena, subject to any appropriate legal objections or motions” (Opinion 10-150).