Opinion 15-124
June 11, 2015
Digest: Under the circumstances presented, the inquiring judge must report to the Commission on Judicial Conduct another judge’s attempts to use the prestige of judicial office to influence the outcome of a family member’s criminal case.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(D)(1); Opinions 15-70; 15-50; 13-146; 10-175; 10-14; 08-83; 03-59.
Opinion:
The defendant in a criminal case before the inquiring judge arrived at the court with his/her parent, a part-time judge from a nearby jurisdiction. The court clerk later advised the inquiring judge that a judge appeared with his/her accused child and asked to speak with the presiding judge. The ADA also stated a judge participated in the pre-trial conference with his/her defendant child and “attempted to influence a disposition.” When the case was called, the defendant’s parent said he/she is a judge and offered a Unified Court System identification card as proof. When the inquiring judge asked the defendant’s parent if he/she “was aware of the ethics of what [he/she] was doing,” the parent repeated he/she was a judge, and clarified he/she was not the defendant’s attorney. The inquiring judge asks if reporting is thus required.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge with information indicating a substantial likelihood another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take appropriate action (see 22 NYCRR 100.3[D][1]).
In Opinion 13-146 (citations omitted), the Committee advised:
A judge is not required to conduct an investigation of alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the 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. If the judge concludes that either of these two elements is missing, the judge need not take any action. If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority. By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.
Although these determinations are ordinarily left to the inquiring judge’s discretion, “there have been instances ‘where conduct described in an inquiry to this Committee, if true, clearly called into question another judge’s fitness to continue in office and, thus, at the very least, warranted an inquiry by the Commission [on Judicial Conduct]’” (Opinion 13-146, quoting Opinion 10-175). In such situations, the Committee has advised the inquiring judge of his/her affirmative duty to report the misconduct to the Commission on Judicial Conduct (see e.g. Opinions 15-70 [judge attempted to improperly influence a relative’s case at the courthouse]; 10-14 [judge offered to have a police officer destroy a traffic ticket the officer issued to the inquirer’s relative]; 08-83 [judge drove a car recklessly while intoxicated, expressed an expectation of special consideration due to his/her current and past official status, and presided more than once while intoxicated]; 03-59 [judge called inquirer’s court attorney asking for help in getting inquirer to disqualify him/herself so that a friend’s petition could be heard by a different judge]; see also Opinion 15-50 [discussing prior opinions regarding a judge’s improper efforts to intervene in or influence cases properly before another judge]).
Here, this judge concluded he/she has information, including his/her direct observations, indicating a substantial likelihood that another judge has tried to use the prestige of judicial office to advance his/her child’s interests and improperly influence a criminal proceeding on his/her child’s behalf (see 22 NYCRR 100.2[C]). On these facts, the other judge’s actions, if proved, clearly call into question his/her fitness to continue in office (see Opinions 15-70; 10-14). Thus, this judge must report the other judge’s conduct to the Commission on Judicial Conduct.