Opinion 03-59

September 4, 2003

Digest:         Under the circumstances presented, a judge whose court attorney has been contacted by telephone by another judge concerning a matter involving a friend of the caller, in which the question was raised of getting the inquiring judge to recuse him/herself so that the friend’s petition could be heard by a different judge, should report the matter to the State Commission on Judicial Conduct.

Rules:          N.Y. Const. Art. VI, sec. 22(a); 22 NYCRR 100.1; 100.2(A),(B),(C); 100.3(B)(6); 100.3(D)(1); 100.3(E)(1).

Opinion:

         The inquiring judge informs the Committee that he/she had presided over a matter in which a petition seeking enforcement of certain provisions of a judgment of divorce was dismissed. There was no appeal from the dismissal but the petitioner had complained to the supervising judge and possibly others about the inquirer.

         Thereafter, another judge telephoned the inquiring judge’s court attorney and left a voice mail message. The inquirer has provided the Committee with a copy of the transcript of the recorded message. In substance, the caller stated that he/she and the petitioner were personal friends and that the petitioner is “beside herself,” having had “issues” with the inquiring judge. The caller goes on to state that he/she had advised the friend to file her petition in a different locality. But this would require the inquirer to exercise recusal. The judge then stated: “So I’m reaching out to you to get suggestions as to how we could get him to do that. I don’t know if he would, for whatever reason.” The caller goes on to state that “petitioner and the judge apparently have not had a good rapport and she’s definitely has major issues she needs to modify with regard to her divorce decree and her husband.”

         Subsequently, the court attorney responded, stating that recusal is discretionary and in any event could not occur unless the parties came before the inquiring judge and made such an application.

         The inquiring judge now seeks the Committee’s advice as to the appropriate course of action.

         Section 100.3(D)(1) of the Rules Governing Judicial Conduct, states that “A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of this Part shall take appropriate action.” 22 NYCRR 100.3(D)(1). Assuming solely for the purpose of this opinion, the authenticity and accuracy of the telephone message and transcript, the Committee is of the opinion that appropriate action in this instance requires the judge to report the matter to the State Commission on Judicial Conduct. On its face, the transcript of the voice mail message discloses all substantial likelihood that another judge has committed a substantial violation” of the Rules Governing Judicial Conduct. See, e.g. 22 NYCRR 100.1, 100.2(A), (B), (C); 100.3(B)(6).

         Without elaborating on the gravity of the purported conduct, it is, we believe, of sufficient weight to warrant disclosure to the Commission, the body charged with the responsibility of investigating and determining complaints with respect to, among other things, the conduct, qualifications and fitness of any judge or justice of the Unified Court System of New York. N.Y. Const. Art VI, sec. 22(a).

         Further, should a petition be filed before the inquirer by the petitioner seeking recusal, the judge should inform the parties that he/she had received the telephone call in question. But the receipt of that call does not mean that recusal is required, provided that the judge believes he/she can be fair and impartial. 22 NYCRR 100.3(E)(1).