Opinion 17-53

May 4, 2017

Digest:         (1) A judge who receives a social media message from the victim’s first-degree relative that contains substantive discussion of the case must disclose the ex parte communication to all parties. (2) Recusal is not mandated here and is within the sole discretion of the judge if such a request is made.

Rules:          Judiciary Law § 14; 22 NYCRR 100.0(U)-(V); 100.2, 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 16-156; 16-155; 15-178; 99-50; 98-144; 96-95; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge recently presided over two related juvenile delinquency cases involving two respondents and sentenced the respondents to two years’ probation.¹ Thereafter, the judge inadvertently approved a social media connection request from the victim’s parent and received a personal message from him/her. The parent thanked the judge for presiding in the cases and commented on respondents’ attempt to obtain and submit character reference letters from school employees.² The victim’s parent also said he/she had encouraged the school superintendent to contact the judge directly. In response, the judge explained he/she had not meant to accept the social media connection request and could not engage in a private conversation concerning the case. The judge then deleted the social media connection with the victim’s parent. The judge asks if disclosure is required and whether he/she may preside in future proceedings arising out of the incident. 

         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]). In general, 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 (see 22 NYCRR 100.3[B][6]). A pending proceeding is one that has begun but not yet reached final disposition, and an impending proceeding is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]).

Disclosure of Ex Parte Communication

         Whether a judge must disclose a particular ex parte communication depends on its contents (see Opinion 98-144). For example, a judge need not disclose a non-substantive, ex parte laudatory letter commending the judge for his/her prior decision on a case (see Opinion 16-156). Conversely, if a judge reviews a substantive ex parte communication, it must ordinarily be disclosed to all parties (see Opinion 15-178; cf. Opinion 16-155 [an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides]). Thus, we advised that an ex parte letter containing information about disputed evidentiary facts or otherwise addressing the merits of the pending case should be disclosed to all parties (see Opinion 96-95). Similarly, in Opinion 99-50, we concluded that ex parte letters written by friends and relatives of the defendant or victim concerning a pending sentence should be made available for inspection by the parties and their attorneys.

         Here, the judge inadvertently accepted the victim’s parent’s social media request, and thereafter read a message addressing the merits of the case. Although the matter has gone to final disposition with respect to the two respondents, that disposition involves probation. Thus, it is reasonably foreseeable that a violation of probation petition could be filed with the court in the future. There is also a possibility that an additional case could be filed concerning the same incident with respect to a third suspect who is currently under investigation. Furthermore, this communication by the victim’s parent was received shortly after the conclusion of the dispositional hearings for each respondent. As such, we advise that the inquiring judge disclose the communication to the parties and the attorneys forthwith, including the assistant county attorney, the attorneys for the children, the respondents, and the parents or guardians of the respondents, if applicable. The judge’s letter should include the unredacted verbatim communication that was sent by the victim’s parent. If charges are subsequently filed against the third suspect, and the inquiring judge is assigned to the matter, the Committee further advises the judge to disclose the communication to all parties at the outset of the proceeding.

Disqualification

         A judge must disqualify him/herself in circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) and in any other case where his/her impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). Because the ex parte communication here occurred post-disposition, the communication cannot reasonably be perceived as having influenced the judge’s decision. Further, under the circumstances, the substance of the communication does not seem likely to erode public confidence in the judiciary or raise any reasonable questions about the judge’s impartiality once it has been disclosed. Therefore, if a request is made for the judge’s recusal from future proceedings involving the same parties, such decision is in the sole discretion of the inquiring judge.

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¹ There is also a pending investigation concerning whether a third juvenile was involved in the same incident.

² One such letter had been proffered at a case conference, but the judge did not accept it.