Opinion 15-189

October 22, 2015

Digest:         Under these circumstances, a town justice must report substantial and troubling irregularities in his/her court to an appropriate administrative or supervising judge. The judge may, but is not required to, report the apparent misconduct to other authorities. 

Rules:          Judiciary Law § 47; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 14-140; 14-122; 13-35; 08-99; 07-144; 06-13.

Opinion:

         The inquiring town justice is aware of rumors his/her co-judge may have left town before the effective date of his/her resignation. The co-judge’s case files from this period contain traffic tickets with guilty pleas accepted, plea agreements approved, and fines set, and the inquiring judge suspects the handwriting is that of the court clerk. In addition, the court clerk advised the judge that (1) the co-judge left his/her checks with the court clerk so the clerk could disperse the money in the co-judge’s accounts and (2) the court clerk personally filed one monthly financial report with the Comptroller’s office on behalf of the co-judge, and planned to do so for the following month. According to the inquirer, the monthly report must be filed personally by the town judge, rather than a court clerk.¹ The court clerk has since resigned. The inquiring justice asks whether he/she must report the co-judge and/or the court clerk.

         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, if a judge receives information indicating a “substantial likelihood” that a lawyer or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).

         A judge has no duty to investigate whether misconduct allegations are true (see e.g. Opinion 14-140). The Committee generally advises that a judge him/herself must determine whether the two prongs of Section 100.3(D)(1) are met, since the judge is best positioned to evaluate and assess all relevant, known circumstances, including the reliability of information known to the judge. This is especially true if, as here, the information includes rumors or hearsay (see Opinion 14-140). Only if both prongs are met must the judge take appropriate action.

         Here, the information described by this judge does not meet the threshold “substantial likelihood” prong. Although it is clear the co-judge’s traffic tickets were disposed of during his/her rumored absence, the inquiring judge does not know if the co-judge personally decided and directed the disposition of each traffic ticket, or improperly delegated this authority to the court clerk. Again, the judge has no duty to investigate the matter. Because the “substantial likelihood” prong is not met, the inquiring judge need not take any action whatsoever under Section 100.3(D)(1). Thus, the judge need not report his/her co-judge to the Commission on Judicial Conduct under the circumstances presented, although he/she may do so in his/her discretion.²

         As for the court clerk, Section 100.3(D) imposes no disciplinary duties on a judge who learns of inappropriate or illegal conduct by an individual who is not a lawyer or a judge (see e.g. Opinions 14-122 [unlawful notarization]; 13-35 [prospective tenant has an open bench warrant]; 07-144 [acquaintance stole money from his/her employer]; 06-13 [medical doctor failed a drug test]).

         The facts described do, however, suggest substantial and troubling irregularities on the part of the court clerk, and possibly the co-judge. The Committee has noted that “misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself” (Opinion 08-99). Thus, under these circumstances, this justice must report facts he/she has learned to the appropriate administrative or supervising judge (see Opinion 08-99).

         The judge may, but is not required to, report the apparent misconduct to other authorities, such as the comptroller, district attorney, municipal officials, or the police.

________________

      ¹ The Comptroller “will not accept reports certified by someone other than the justice,” and emphasizes that “it is not appropriate for the court clerk to sign the justice’s name and initial this action” (Office of the State Comptroller, Justice Court Fund Handbook for Town and Village Justices and Court Clerks [Feb. 2010], at 16). Thus, “[i]f someone is completing the report of a deceased or incapacitated justice, then notification from the town or village chief fiscal officer explaining the circumstances should accompany the report” (id.). The Comptroller explains that “use of signature stamps on the reports or on checks drawn against a justice’s bank account is highly discouraged” as it “increases the risk of reporting errors or moneys being misappropriated” (id.).

      ² The co-judge’s resignation would not necessarily render reporting to the Commission on Judicial Conduct moot, should the inquiring judge choose, in his/her discretion, to make such a report (see Judiciary Law § 47).