Opinion 17-138
March 29, 2018
Digest: Where a litigant has provided a judge with a copy of a purported disciplinary complaint but the Commission on Judicial Conduct has not contacted the judge about any pending investigation or complaint, the judge may presume no investigation or complaint is now pending.
Rules: 22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.5(A)(1)-(2); 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); Opinions 12-129(A)-(G); 12-114; 2018 Ann Rep of Commn on Jud Conduct at 267-68.
Opinion:
A judge who is currently seeking election or re-election to judicial office has received a copy of a purported disciplinary complaint from a litigant who identifies him/herself as a sovereign citizen. The litigant’s complaint is addressed to the Commission on Judicial Conduct, but the judge has not received any communications from the Commission concerning it. The judge asks if he/she must disclose the complaint on screening panel questionnaires that ask the judge to disclose all disciplinary complaints and/or investigations involving him/her.
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]). A judge who is within his/her window period for election to judicial office may personally participate in his/her own campaign, subject to certain limitations (see 22 NYCRR 100.5[A][1]-[2]). Among other restrictions, a judge or non-judge judicial candidate must not knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning him/herself (see 22 NYCRR 100.5[A][4][d][iii]), and must act in a manner consistent with the judiciary’s impartiality, integrity and independence (see 22 NYCRR 100.5[A][4][a]).
As we have previously recognized, “[i]t is especially important for judicial candidates to be truthful because judges are called upon to administer oaths and are ‘sworn to uphold the law and seek the truth’” (Opinion 12-114 fn 1 [citations omitted]).
Thus, responses to endorsement questionnaires must be “entirely truthful and not in any way misleading” (Joint Opinion 12-129[A]-[G]), as there is “no place for distortions in a judicial campaign” (Opinion 12-114). Still, we also recognize that “[t]he rules governing judicial conduct are rules of reason” (22 NYCRR pt 100, Preamble).
Although this judge received a copy of a purported disciplinary complaint from a litigant, he/she has not received any communications from the Commission concerning it and thus does not know for certain if the Commission has received a copy and will open an investigation.1 On these facts, we believe the judge need not disclose the complaint at this time if a screening panel asks the judge to identify all disciplinary complaints and/or investigations involving him/her. Rather, the judge may presume that the litigant’s purported disciplinary complaint has not been filed with the Commission unless and until the Commission contacts the judge about it.
However, if and when the judge learns from the Commission that a complaint has been filed or that an investigation has been opened, the judge must either disclose it as appropriate to the specific question asked2 or else expressly decline to respond to the question. We note that any formal or informal inquiry or communication from the Commission may potentially suffice to put the judge on notice of a pending complaint or investigation for purposes of responding to a screening panel’s questionnaire. Again, if a judge chooses to respond to such questions, his/her response must be “entirely truthful and not in any way misleading” (Joint Opinion 12-129[A]-[G]).
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1 The vast majority of all complaints filed with the Commission are dismissed on first review or preliminary inquiry as non-meritorious (see 2018 Ann Rep of Commn on Jud Conduct at 267-68). Indeed, in most of these, the only “misconduct” alleged is an incorrect ruling (id.).
2 For example, question 21 of the Independent Judicial Election Qualification Commission’s questionnaire expressly excludes “complaints or charges subsequently dismissed as unproven or unmeritorious,” whereas other questionnaires might not make such exclusions.