Opinion 15-94

June 11, 2015

Digest:         A judge who receives reliable information that a more senior judge, who has administrative or supervisory responsibilities, displayed impatient, discourteous, and undignified behavior on the bench, made unprovoked threats to alter another judge's order in the case sua sponte to suit the more senior judge's personal preferences, and repeatedly refused to consider or decide the issues before him/her, must report the more senior judge’s conduct to the appropriate administrative judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(1), (3)-(4), (6); 100.3(D)(1); Opinions 14-86; 10-181; 08-99; 08-83; Joint Opinion 05-105/05-108/05-109.

Opinion:

         The inquiring judge states that he/she has reviewed a recording of a hearing in which a more senior judge, who has certain administrative or supervisory responsibilities, was presiding in a particular case. The inquiring judge is particularly concerned about the more senior judge's conduct, demeanor, and statements as recorded, which appear to reflect impatient, discourteous, and undignified behavior, including unprovoked threats to alter another judge’s order in the case sua sponte to suit the more senior judge’s personal preferences, and a repeated refusal to consider the parties’ request that the judge hear and decide the issue they asked him/her to decide.¹ The inquiring judge asks whether reporting is mandatory.

         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]). 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” (22 NYCRR 100.3[D][1]).

         As explained in Opinion 14-86: 

The Committee has generally advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules. In the Committee’s view, the judge who has observed or who, based on reliable information, learns about another judge’s conduct, is ordinarily in the best position to determine whether such conduct constitutes a “substantial violation” of the Rules. If a judge concludes there is a “substantial likelihood that another judge has committed a substantial violation” of the Rules, the judge “shall take appropriate action.” There is a wide range of “appropriate actions” depending on the circumstances, and it is, therefore, ordinarily left to the judge’s discretion to determine what action will be appropriate. However, if the judge concludes the misconduct calls into question another judge’s fitness to continue in office, then “the only appropriate action” is to report the other judge to the Commission on Judicial Conduct [citations omitted].

         The Committee has previously noted that it “cannot judge the credibility of ‘allegations of misconduct’ and is not empowered to do so’” (Opinion 13-146, quoting Joint Opinion 05-105/05-108/05-109). There have nonetheless been several 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, therefore, at the very least, warranted an investigation by the Commission (see e.g. Opinions 13-146 [judge undertook legal work in connection with a matter that originated in the judge’s court and over which the judge previously presided at the arraignment stage]; 10-181 [after arraigning defendant and setting bail, judge personally posted bail using check drawn on judge’s spouse’s bank account, signed his/her spouse’s name to secure defendant’s release, and then drove defendant home]; 10-14 [judge offered to have a police officer destroy a traffic ticket the officer issued to the inquirer’s relative]). In such cases, the Committee has advised that “appropriate action” necessarily involves reporting the conduct to the Commission.

 In at least two instances, the Committee has advised that the Aappropriate action@ is, or includes, reporting certain facts or conduct to an administrative judge. For example, a judge who has reliable information from first-hand observations 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 not only report the other judge to the Commission, but also to the appropriate administrative judge (see Opinion 08-83). The Committee explained that reporting the conduct to the administrative judge was necessary, under the circumstances presented, A[b]ecause the Commission=s disciplinary process ordinarily takes significant time,@ and the other judge=s alleged conduct presented Aobvious risks ... during the pendency of that process@ (id.) That is, the administrative judge must be informed Aso that other appropriate action may be considered and taken in the interim,@ including, potentially, making referrals to a treatment program or seeking the guidance of the NYS Bar Association=s Lawyer Assistance Trust (id.). The Committee has also advised that a town justice who discovers evidence that certain court personnel may have engaged in misconduct that suggests the possibility of corruption within the court itself must report all the facts he/she has learned to his/her administrative judge (see Opinion 08-99).

         The Committee believes the conduct described in the present inquiry, if true, unambiguously satisfies the standard of Asubstantial likelihood@ of a Asubstantial violation,@ as the inquiring judge appears to have reliable information that another judge has engaged in misconduct that is clearly prohibited under the Rules (see e.g. 22 NYCRR 100.3[B][1] [AA judge shall be faithful to the law and maintain professional competence in it.@]; 100.3[B][3] [AA judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity...@]; 100.3[B][4] [AA judge shall perform judicial duties without bias or prejudice against or in favor of any person.@]; 100.3[B][6] [AA judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.@]).

The inquiring judge must therefore take appropriate action (see 22 NYCRR 100.3[D][1]). Under the specific circumstances presented, it appears the alleged misconduct has affected at least one court proceeding, and the judge who allegedly engaged in such misconduct is a more senior judge who has certain administrative or supervisory responsibilities. The alleged misconduct, if proven, clearly calls into question the more senior judge's fitness to continue in such supervisory or administrative capacity and, therefore, at the very least, warrants prompt intervention by the appropriate administrative judge (cf. Opinion 08-83). Therefore, as was the case in Opinions 08-99 and 08-83, the facts in the present inquiry require immediate action to protect other litigants. Only the administrative judge will be in a position to act quickly and authoritatively to determine the extent of the problem and to consider and take appropriate steps to address the root causes as well as the effects of the alleged misconduct.

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         ¹ The facts as set forth in the inquiry do not suggest or support an interpretation that the more senior judge was merely mistaken about the law; instead, the judge=s statements created an impression that the judge was unwilling to consider the law.