Opinion 08-83

April 24, 2008

Digest:         A judge who has reliable information from, inter alia, his/her first-hand observations of the circumstances that another judge drove a car recklessly while intoxicated and also has substantial information that the other judge presided more than once while intoxicated must report the other judge to the Commission on Judicial Conduct and to the appropriate administrative judge because the other judge’s actions call into question his/her fitness to continue in judicial office.

Rules:          Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279 [1983]; Quinn v State Commn. on Jud. Conduct, 54 NY2d 386 [1981]; 22 NYCRR 100.2(A), (C); 100.3(B); 100.3(D)(1); Joint Opinion 05-105, 05-108 and 05-109; Opinions 05-142; 03-59; 00-64 (Vol. XIX) 98-95 (Vol. XVII); 97-84 (Vol. XVI); 91-36 (Vol XII); 1997 Ann Rep of NY Commn on Jud Conduct, at 12; 1996 Ann Rep of NY Commn on Jud Conduct, at 12; 1985 Ann Rep of NY Commn on Jud Conduct, at 19; 1983 Ann Rep of NY Commn on Jud Conduct, at 16; 1981 Ann Rep of NY Commn on Jud Conduct, at 23.

Opinion:

         The inquiring judge seeks guidance as to his/her obligations in the following scenario. The inquirer was about to retire for the evening when he/she received a call from a local law enforcement officer. The officer advised the inquiring judge that he/she had stopped another judge (hereafter “Judge B”), that Judge B was “highly intoxicated,” and had been “swerving all over the road.” The officer asked the inquiring judge to “come . . . and get” Judge B as the officer did “not want to arrest [Judge B] if [he/she] did not have to.”

         The inquiring judge drove to the scene. Upon his/her arrival, an officer handed to the inquiring judge Judge B’s license, registration and insurance card. An officer at the scene told the inquiring judge that Judge B “[a]lmost ran my partner off the road when [he/she] crossed the divider line.” The officer also said that when Judge B presented his/her license, registration and insurance card, Judge B also “presented the badge of a retired [prosecuting official].” The inquiring judge indicates that he/she did not witness any officer issue a summons to Judge B, and no one handed a summons to him/her for Judge B.

         The inquiring judge drove Judge B home. When Judge B entered the inquiring judge’s car, the inquiring judge “immediately sense[d] a strong odor of alcohol” on Judge B’s breath. Judge B also made incriminating statements, including that the local law enforcement officials who stopped him/her “just don’t get it” and “[t]hey need to get with the program.”

         The inquiring judge also is aware that Judge B presently is presiding over a case involving another officer from the same department as the roadside officers. That officer is charged with driving while intoxicated.

         Finally, the inquiring judge states that he/she also recently received reports from separate, apparently independent sources, that Judge B has presided in court while intoxicated. The complainants are lawyers who are uncomfortable reporting Judge B for fear of potential reprisal. The inquiring judge offered to accept a written complaint from the attorneys and to file it him/herself, but the attorneys declined the offer.

         In light of all of these facts, the inquiring judge asks the Committee to render advice as to what his/her reporting obligations are, if any, regarding Judge B’s conduct, and what other steps, if any, he/she must or may take in these circumstances.

         The Committee first notes the extremely awkward predicament in which the inquiring judge found him/herself, particularly given the timing of the telephone call from the police and the need to act quickly, without any meaningful opportunity to consider carefully how to respond to the rapidly unfolding, late-night situation. We commend the inquirer for quickly reaching out informally to both a judicial member and a staff counsel of this Committee and for promptly following up with this formal request for an opinion. The inquirer has been awaiting the Committee’s guidance before acting further.

         Pursuant to the Rules Governing Judicial Conduct, “[a] judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of [the Rules Governing Judicial Conduct] shall take appropriate action” (22 NYCRR 100.3[D][1]).

         In most of our prior opinions on this subject, this Committee has advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. The Committee further has advised that, if a judge concludes that another judge’s conduct constitutes a substantial violation of the rules and, if true, that the violation is so serious that it “calls into question a judge’s fitness to hold judicial office” (Joint Opinion 05-105, 05-108 and 05-109), he/she must report the matter to the Commission on Judicial Conduct (hereinafter “the Commission”). If, however, a judge determines that the violation at issue is not so serious or is merely technical in nature, it is within his/her discretion to take lesser, ethically appropriate action, short of reporting another judge to the Commission (see Opinions 05-142; 98- 95 [Vol XVII]; 97-84 [Vol. XVI]).

         There have been a few instances, however, where conduct described in an inquiry to this Committee, if true, clearly implicated a judge’s fitness to continue in office, and therefore, at the very least, warranted an investigation by the Commission (see Joint Opinion 05-105, 05-108 and 05-109; see also Opinions 03-59; 00-64 [Vol. XIX]). Because, in the Committee’s view, the facts in the present inquiry implicate Judge B’s fitness to continue in office, the inquiring judge must report them to the Commission to satisfy his/her responsibilities under section 100.3(D)(1) of the Rules Governing Judicial Conduct.

         The inquiring judge describes behavior of Judge B that allegedly occurred on several distinct occasions that would violate ethics and/or legal principles. If Judge B presided in court while intoxicated, he/she failed to fulfill the responsibility imposed on all judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]; see also Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279 [1983]; 1983 Ann Rep of NY Commn on Jud Conduct, at 16; 1985 Ann Rep of NY Commn on Jud Conduct, at 19; 1996 Ann Rep of NY Commn on Jud Conduct, at 12). Further, Judge B’s alleged impaired and reckless driving that resulted in the traffic stop, demonstrates a lack of respect for and a failure to comply with the law (see 22 NYCRR 100.2[A]; see also Quinn v State Commn. on Jud. Conduct, 54 NY2d 386 [1981]). Finally, the totality of Judge B’s foregoing alleged conduct, in addition to his/her behavior during, and in the immediate aftermath of, the traffic stop bespeaks his/her belief that the prestige of judicial office should enable him/her to avoid arrest and/or prosecution (see 22 NYCRR 100.2[C]; 1997 Ann Rep of NY Commn on Jud Conduct, at 12; 1981 Ann Rep of NY Commn on Jud Conduct, at 23). All this is further compounded by the grave risk that Judge B’s alleged conduct posed on the night in question to innocent drivers and pedestrians.

         Viewing all these alleged circumstances together, the Committee further concludes that the inquiring judge must take an additional step beyond reporting Judge B to the Commission. Because the Commission’s disciplinary process ordinarily takes significant time, and in light of the obvious risks that Judge B’s alleged conduct would pose during the pendency of that process, the inquirer also should notify his/her administrative judge of this situation so that other appropriate action may be considered and taken in the interim. That range of options includes, but is not limited to, discussing with Judge B the possibility of a treatment program and/or making a suitable referral thereto, or seeking the guidance of the NYS Bar Association’s Lawyer Assistance Trust (cf. Opinion 91-36 [Vol VII]).

         The inquiring judge also asks about Judge B’s obligations in this situation. We decline to respond to that question as this Committee’s purpose is to assist inquiring judges to conform their own conduct to the Rules Governing Judicial Conduct.