Opinion 16-154

October 20, 2016

Digest:         A judge may, but is not required to, disclose his/her habitability concerns to a local code enforcement officer. If the judge does so, he/she may not preside over the resulting proceeding, and therefore may not issue a warrant for the code enforcement officer to enter the premises.

Rules:          Judiciary Law § 14; § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3[D][1], [2]; 100.3(E)(1); 100.3(E)(1)(a) – (f); 101.1; Opinions 16-25; 14-86; 09-223; 07-144; 06-13; 03-110.

Opinion:

         A town justice who recently issued a final judgment in a summary proceeding involving a landlord and tenant is concerned about “serious issues with the property which may impact habitability,” based on the evidence presented. The judge asks:

1.   Must he/she report these concerns to the town code enforcement

 officer and/or the town attorney?

2.   If not, may he/she make such a report?

3.   If so, how should he/she do so?

4.   May the judge thereafter issue a warrant for the code enforcement officer to enter the premises?

         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 also must disqualify him/herself in several enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14) and in any other proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge may not preside if he/she is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i]) or is likely to be a material witness (see 22 NYCRR 100.3[E][1][e]).

         The rules describing a judge’s disciplinary obligations refer only to “a lawyer” (22 NYCRR 100.3[D][2]) or “another judge” (22 NYCRR 100.3[D][1]), and thus “a judge need not report criminal or other misconduct by persons who are neither lawyers nor judges, even if the misconduct occurs in a case before the judge” (Opinion 16-25 [citing prior opinions]). Accordingly, this judge has no ethical obligation to report his/her habitability concerns to the town code enforcement officer, town attorney, or any other town official (see e.g. Opinions 07-144; 06-13; 03-110).

         The judge may nonetheless, in his/her sole discretion, report such concerns to the code enforcement officer, just as he/she generally may report a suspected crime or violation (see e.g. Opinions 07-144; 03-110; 16-25).

         However, if the judge chooses to make a formal or informal complaint to the code enforcement officer, or otherwise reports the relevant facts to him/her, the judge must not preside over any eventual complaint or proceeding concerning habitability of the premises, as he/she may reasonably be perceived as the complainant and/or a fact witness (see generally 22 NYCRR 100.3[E][1][d][i]; 100.3[E][1][e]; cf. Opinion 14-86). Where the judge is disqualified from presiding over the habitability proceeding, he/she also must not issue a warrant for the code enforcement officer to enter the premises (cf. Opinion 09-223 [a judge who disqualifies him/herself from all cases involving a particular attorney “must do so at the outset of each case, and may not conduct an arraignment before doing so”]).

         Questions about how to make a report to the town code enforcement officer raise primarily legal or administrative questions which the Committee cannot answer (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).