Opinion 15-178

October 22, 2015

Digest:         Housing Court judges who repeatedly receive attempted ex parte communications from elected officials on behalf of their tenant-constituents should set up a screening procedure if possible, so that staff members can return such communications to the sender without exposing the judge to the substance of the communications. (1) If the judge does not review the ex parte communication, disclosure is not required and the judge has no further obligation. (2) If the judge reviews the ex parte communication, it must ordinarily be disclosed to all sides. (3) If the judge believes he/she cannot be fair and impartial after reviewing a particular ex parte communication, disqualification is required.

Rules:         Judiciary Law § 212(2)(l); 22 NYCRR 100.3(B)(6); 100.3(B)(6)(a); 100.3(E)(1); 100.3(E)(1)(a)(i); Opinions 09-71; 07-192; 07-82.

Opinion:

         An administrative or supervising judge says elected officials often write to Housing Court judges ex parte on behalf of their tenant-constituents who are appearing before the court, either requesting “specific consideration for the tenants and requesting adjournments” or “providing information as to what efforts the tenants have made to secure legal and/or financial assistance.” Sometimes, a judge, currently testing the waters or otherwise seeking political support for another judicial office, receives such a letter from an elected official who is also a local political leader. The inquiring judge asks how Housing Court judges should handle these ex parte communications.

         A judge must not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, unless an exception applies (see 22 NYCRR 100.3[B][6]).¹

         Given this judge’s description of a known and recurring pattern of attempted ex parte communications from elected officials, the affected judges should set up a screening procedure if possible. As described in Opinion 08-23:

Because ... judges often are inadvertently exposed to ex parte communications..., the Committee recommends that judges implement a procedure to avoid such an occurrence in the future. Namely, a judge should have his/her law clerk, court attorney, court clerk or other appropriate member of his/her staff review all correspondence addressed to the judge before the judge sees it to screen for any ex parte communication. In this way, any ex parte communication can be dealt with appropriately, without necessitating either disclosure of sensitive information or the judge’s disqualification. For example, the judge’s staff member can return an ex parte communication to the sender, advising him/her that the judge cannot consider the information conveyed without notice to all the parties to the proceeding and suggesting that any relevant and necessary information be introduced in the proceeding according to the applicable laws of evidence and procedure.

         Here, too, if the judge’s staff screens out impermissible ex parte communications and returns such letters to the sender (see Opinion 08-23), so the judge is never exposed to the substance of the letter, the judge need not take any further action. The letters need not be disclosed to the parties or their counsel, because the judge did not review their contents and cannot be affected by them (see Opinion 08-54).

         If the judge nonetheless reviews a letter that was sent to him/her ex parte requesting “specific consideration for the tenants” or “providing information as to what efforts the tenants have made to secure legal and/or financial assistance,” the letter must ordinarily be disclosed to all parties (see generally Opinions 07-192; 07-82).

         Further, if the judge believes he/she cannot be fair and impartial after reading the letter, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1]; 100.3[E][1][a][i]; Opinion 07-192; cf. Opinion 09-71 [even where the judge has not acquired a personal bias or prejudice after reviewing an ex parte communication, he/she should still “exercise his/her discretion regarding disqualification,” and consider whether disqualification might be “the better practice” under the specific circumstances]).

           Finally, to the extent a tenant attempts to present a letter from an elected official to the judge, ex parte, during a court proceeding, the judge should ensure the letter is first shared with all parties before reviewing it. Of course, the Committee cannot address legal questions such as admissibility and relevance of such letters (see Judiciary Law § 212[2][l]).

___________________

         ¹ Where, as here, the elected officials who are attempting to communicate with the court ex parte are not, in fact, appearing as counsel on behalf of their tenant-constituents, the exception for certain ex parte communications “made for scheduling or administrative purposes” (22 NYCRR 100.3[B][6][a]) does not apply.