Opinion 10-14

January 28, 2010

Digest:         An inquiring judge must report to the Commission on Judicial Conduct the fact that another judge offered to have a police officer destroy a traffic ticket the officer issued to the inquiring judge’s relative.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.3(D)(1); 100.3(E); Opinions 08-146; 08-83; 07-200, mod on other grounds by 08/183/08-202/09-112; 00-64 (Vol. XIX); 98-95 (Vol. XVII); 92-42 (Vol. IX); Matter of Reedy v Commn. on Jud. Conduct, 64 NY2d 299 (1985).

Opinion:

         A judge asks whether he/she is obligated to take any action with respect to another judge’s conduct.

         The inquirer’s relative received a traffic ticket in a neighboring jurisdiction. The inquirer advises that he/she told his/her relative to plead “not guilty” and to “let the process work.” The inquirer also indicates that later on the same day that his/her relative received the traffic ticket, a judge from that neighboring jurisdiction contacted him/her by e-mail to advise him/her that the judge was aware that the inquirer’s relative received a traffic ticket. And, according to the inquirer, the same judge from the neighboring jurisdiction again contacted him/her by e-mail later that same day to advise, “I know - No sgt due in until tomorrow then it should be corrected.” According to the inquirer, he/she did not respond to either e-mail.

         The inquirer also advises that the same judge from the neighboring jurisdiction spoke to him/her on three subsequent occasions, once by telephone and twice in-person, and asked the inquirer to produce the original ticket so that the arresting officer could destroy it. According to the inquirer, he/she protested and advised the judge from the neighboring jurisdiction that his/her relative would not produce the original ticket for the stated purpose, but would plead “not guilty” and request a supporting deposition.

         The inquirer further advises that approximately one month later, his/her relative pleaded “not guilty” to the alleged traffic offense by completing “Section B - Plea of Not Guilty” on the back of the Uniform Traffic Ticket and by checking the appropriate box to indicate his/her request for a supporting deposition. The inquirer’s relative then mailed the original ticket to the neighboring court.

         According to the inquirer, approximately six months after mailing the Uniform Traffic Ticket to the neighboring court, his/her relative wrote a letter asking for a written statement as to the status of the ticket. The inquirer further indicates that his/her relative never received a written response. Instead, on two occasions a member of the court staff called the inquirer’s relative and left messages asking him/her to contact the court by telephone. The inquirer’s relative returned the first call and left a message again asking for a written response. Thereafter, no one from the court has contacted either the judge or the judge’s relative.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), must avoid impropriety and the appearance of impropriety in all his/her activities (see 22 NYCRR 100.2), and must 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]). Therefore, a judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take appropriate action.

         The Committee has consistently advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether the misconduct is a substantial violation of the Rules Governing Judicial Conduct (see Opinions 00-64 [Vol. XIX]; 98-95 [Vol. XVII]; 92-42 [Vol. IX]). In the Committee’s view, the judge who has observed or who learns about another judge’s conduct is in the best position to determine whether it constitutes a substantial violation (cf. Opinion 07-200, mod on other grounds by Joint Opinion 08-183/08-202/09-112).

         In evaluating another judge’s conduct to determine whether it constitutes a substantial violation of the Rules Governing Judicial Conduct, a judge should be guided by such provisions of the Rules as (1) A judge shall uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1); (2) A judge shall avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2); (3) A judge shall respect and comply with the law and shall 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]); and (4) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).

         If a judge concludes that another judge has committed a substantial violation of the Rules Governing Judicial Conduct, he/she is obligated to take appropriate action (see 22 NYCRR 100.3[D][1]). And, if the conduct is such that it implicates the other judge’s fitness to continue in office, then the judge must report the other judge to the Commission on Judicial Conduct (see e.g. Opinion 08-83). Conversely, if a judge concludes that another judge’s conduct is an insubstantial or mere technical violation of the Rules Governing Judicial Conduct, whether to report the conduct to a supervising or administrative judge or to a disciplinary or other authority, or to take some other action, is left to the judge’s discretion (see Opinion 08-146).

         However, on occasion, the Committee has determined that there is no question that certain conduct is so egregious that it constitutes a substantial violation of the Rules Governing Judicial Conduct, and has advised the inquiring judge of his/her affirmative obligation to report the misconduct to the Commission on Judicial Conduct (see e.g. Opinion 00-64 [where inquiring judge has direct, personal knowledge that another judge has overtly engaged in impermissible political activity it is Committee’s view that any inquiry into and assessment of the significance of such conduct rests with the Commission on Judicial Conduct] and Opinion 08-83 [judge who has reliable information from, inter alia, 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]).

         The Committee believes that the circumstances the inquiring judge describes indicate a substantial violation of the Rules Governing Judicial Conduct. Therefore, the inquiring judge must take appropriate action (see 22 NYCRR 100.3[D][1]). And, in the Committee’s view, the alleged misconduct is so serious as to impose upon the inquiring judge an affirmative duty to report the judge from the neighboring jurisdiction to the Commission on Judicial Conduct (see Matter of Reedy v Commn. on Jud. Conduct, 64 NY2d 299, 302 [1985] [“Ticket-fixing is misconduct of such gravity as to warrant removal. . .”]).