Opinion 24-180

December 12, 2024

Digest:   A judge may attend a public meeting on a proposed community court and discuss the creation of the court and its operation but may not comment on pending or impending cases or matters of significant public controversy.

Rules:    22 NYCRR 100.0(R)-(T), (U)-(V); 100.1; 100.2; 100.2(A); 100.3(B)(8)-(9); 100.4(A)(1); 100.4(C)(1); Opinions 24-101; 23-102; 19-120; 18-08; 16-12; 15-61; 13-189/14-07; 12-31; 96-49; Grants Pass v Johnson, 603 US 520 (2024).

Opinion:       

          The inquiring judge has been involved in the development of a planned community court in the judge’s jurisdiction to handle city code violations with alternative sentencing, treatment, and housing solutions.  All stakeholders-–the local corporation counsel, the public defender, legal service agencies, and the county’s social service agencies–-have been involved in planning for the court and support its creation.  The jurisdiction has also recently passed a local ordinance regarding unauthorized camping, loitering, and panhandling issues.  The judge has been invited to attend a public meeting “to give our officials a platform to explain and share the purpose and process for the recent Community Court” and the local ordinance.  The meeting will be hosted by the NAACP to address the community’s questions and concerns regarding the proposed court and the recent legislation.

          The inquiring judge anticipates questions from the community on the concept of the community court and significant discussion on the recently enacted local ordinance and “current issues with the unhoused population” in the community.  The judge now asks: (1) whether the judge may attend the meeting, given that its specific purpose involves public discussion of recent local legislation; (2) whether the judge may answer questions about the possible creation of the community court; (3) whether the judge may discuss the possible framework/model of the proposed community court despite it not yet being finalized; and, (4) what topics/issues the judge may not discuss.

          A judge must uphold the judiciary’s integrity and independence, must avoid even the appearance of impropriety, and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.1; 100.2; 100.2[A]).  A judge’s extra-judicial activities must not therefore “cast reasonable doubt on the judge’s capacity to act impartially” (22 NYCRR 100.4[A][1]).  A judge must also refrain from commenting on pending or impending proceedings in any court of the United States or its territories (see 22 NYCRR 100.3[B][8]).  A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]).  A full-time judge shall not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][1]).

          We have said a judge may attend the NAACP’s national convention as a member of the organization, as the judge’s mere attendance at the convention neither implicates nor casts doubt upon the judge’s impartiality (see Opinion 24-101).  Nonetheless, we cautioned that the judge may not engage in any partisan political activity, may not serve as a delegate or voting member or otherwise assume any leadership role, and must not associate him/herself with organizational positions on matters of public controversy (see id.; cf. Opinion 23-102).  Here, we reach a similar conclusion.  The inquiring judge may attend the meeting sponsored by the NAACP, the purpose of which involves public discussion of recent local legislation, provided the judge abides with the restrictions and cautions mentioned here.

          The judge may also answer questions about the creation of the community court and discuss the proposed community court’s framework or model during the public meeting.  Under established principles, judges are permitted to testify at public hearings and speak at public or private forums on the legal system and the administration of justice (see 22 NYCRR 100.4[C][1]).  Indeed, we have previously advised that a full-time judge may publicly support or oppose proposed legislative or constitutional changes affecting court structure, court operations or the terms or conditions of judicial services (see Opinion 19-120; see also Opinion 18-08 [advising judge may ask state legislators for financial support for local problem-solving court addressing mental health issues]). 

          In evaluating topics the judge may ethically discuss during the public meeting, we begin by advising that the judge may not comment on any matters pending before any court in the United States or on matters of controversy that may result in future litigation (see Opinion 15-61).  In our view, the local ordinance here and its impact on the issue of homelessness are likely to be controversial and it is “reasonably foreseeable” that its enactment may result in future litigation (see Grants Pass v Johnson, 603 US 520 [2024] [upholding laws that prohibit sleeping outside on public property even when there are no available shelter beds]).

          We further advise that the judge must not insert him/herself “unnecessarily into the center of controversy, for example, by taking a position that is so controversial that it is incompatible with judicial office” (Opinion 13-189/14-02 [internal quotation omitted]).  Thus, the judge must carefully consider whether his/her statements during this public meeting could reasonably be seen as favoring or disfavoring a particular class of litigants or revealing any prohibited predisposition, prejudice, or commitment on an issue or to parties that may appear before him/her or otherwise undermine public confidence in his/her impartiality and independence (see e.g. Opinions 16-12; 12-31; see also 22 NYCRR 100.0[R]-[T]; 100.2[A]; 100.3[B][9]). 

          Finally, in addition to refraining from “comments that might detract from public confidence in the impartiality of the judiciary,” if the judge is asked questions during the public meeting that might violate these rules, the judge must decline to respond (Opinion 96-49).