The Advisory Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 28 current and retired judges, and is co-chaired by the Honorable Debra L. Givens, an acting justice of the supreme court in Erie County, and the Honorable Lillian Wan, an associate justice of the appellate division, second department.

Digest: Where a town has installed video security cameras in the courtroom and audio and video cameras in the court clerks’ office, a town judge must object in writing and notify an administrative or supervising judge. The judge may, in his/her discretion, petition town officials to restrict access to the cameras in the court clerks’ office and/or transfer monitoring and control functions to court personnel.

Rules: Civil Rights Law § 52; 22 NYCRR 29.1; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A)-(C); Opinions 19-124; 18-156; 17-73; 16-55.

Opinion: A single town building houses both the town court and the local constabulary, in separate offices on a common hallway. The shared hallway is accessible to the public and is where people go to pay their fines when court is open but not in session. The town, without input from the court, has installed security cameras throughout the building. The inquiring town justice asks about his/her ethical obligations regarding cameras installed by the town in the courtroom and court clerks’ area. The judge has learned the courtroom cameras are video only (no audio), but the cameras in the court clerks’ office have audio, can zoom in, and can be operated remotely by non-court employees. The zoom capability is powerful enough to capture documents in files and keyboard log-ins. Indeed, the judge believes that non-court employees are listening to private conversations among court personnel, as one such town employee has already alluded to the substance of a private conversation between the inquiring judge and a court clerk in the court clerks’ office. [1] The town justices have no knowledge or control over who accesses the cameras or the audio.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). Thus, for example, a judge must not allow “political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]), nor permit anyone to “convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). A judge must also “respect and comply with the law” (22 NYCRR 100.2[A]).

The justice courts are “a separate and independent branch” of local government (Opinion 17-73), constitutionally vested with certain powers and responsibilities (see generally Opinion 16-55). While a town, as owner of a multipurpose building, can take reasonable steps to ensure public safety, we have noted that court rules prohibit audio and visual recordings anywhere in a courthouse without administrative approval (see Opinion 18-156; 22 NYCRR 29.1; see also Civil Rights Law § 52 [prohibiting the “televising, broadcasting, or taking of motion pictures” of certain proceedings]). Indeed, in Opinion 18-156, although the town had already removed its camera from the courtroom at a court administrator’s request, we advised that the judge must object “[i]f the town attempts to re-install a camera in the courtroom.” Additionally, while a judge may acquiesce in the use of video cameras in publicly accessible areas of a town’s multipurpose building other than the courtroom, a judge cannot permit a town’s audio or video monitoring or interference in areas in which the judge deliberates privately, reviews confidential documents, or confers with court personnel (id.; see also Opinion 19-124 [town board member’s presence in court clerk’s office for an entire day, particularly when they work on back-office tasks, could undermine public confidence, create impression that town board can influence judge’s conduct, and compromise confidential communications]).

Here, as described, the installation of the cameras in the inquiring town justice’s courtroom was done without approval of court administrators, and the remotely controlled audio and video cameras installed in the court clerks’ office infringe upon judicial independence. Accordingly, we conclude that the judge must object in writing and notify an appropriate administrative or supervising judge of the town’s installation of the cameras in the courtroom and court offices (see Opinion 18-156).

The judge may also, if he/she chooses, petition town officials to restrict access to the cameras in the court clerks’ office and/or ask to transfer monitoring and control of the cameras to court personnel (see id.).

Finally, if the courtroom itself is a multipurpose room, we note that one ethically permissible alternative to removing the cameras entirely would be to provide the judge with a simple and effective method to shut down the courtroom cameras, and ensure that they remain off, while court is in session. The inquiring judge may, in his/her discretion, consult with court administrators about whether to propose or consider such an alternative.

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[1] The inquiring judge does not credit the individual’s alternative explanation that the conversation was loud enough to be overheard.