Opinion 19-165

January 30, 2020

Digest:         A judge who participated in an appeal must report to the Commission on Judicial Conduct a letter he/she received from the lower-court judge whose decision was overturned, because the letter appears to raise very serious questions about the writer’s impartiality, fairness, and understanding of a proper judicial role and suggests an attempt to improperly influence the subsequent disposition of the case before another judge.

Rules:          22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(8); 100.3(D)(1); 100.4(G); Opinions 18-157; 18-134; 18-74; 17-135; 17-48; 15-94; 10-175; 98-77; Matter of Ayres, 30 NY3d 59 (2017); 2015 Ann Rep of NY Commn on Jud Conduct at 98.

Opinion:

         The inquiring judge participated in an appeal that reversed a lower court’s judgment of dismissal and reinstated the complaint for trial before a different judge. Thereafter, the lower-court judge whose decision was reversed sent a letter to the litigants, with a copy to the appellate court, purportedly to “correct a factual error by the appellate court” and explain in detail the basis for its original determination. In particular, the letter comments on several aspects of the proof before the trial court and the conclusions of the appeals court and thus seems to advise the litigants on legal issues in the pending case. The letter further characterizes the appellate decision as “highly irregular” and suggests the appeals court got “sidetracked” from the main issue and “showed a lack of understanding.” The final paragraph nonetheless purports to “respect[] and accept[] the ultimate determination.” The inquiring judge asks if he/she must report the other judge’s conduct to the Commission on Judicial Conduct.

         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 “subs tantial 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]).

         A judge has wide latitude to evaluate whether the two prongs are met and, if so, to determine what action is “appropriate” under the circumstances (see Opinions 18-157; 18-74). That is, the judge who has observed the offending behavior usually has discretion to determine, for example, that it is appropriate to counsel the other judge or to report the conduct to an administrative judge, rather than filing a disciplinary complaint (see Opinion 15-94). However, as stated in Opinion 17-48 (citations omitted):

There have nonetheless been instances where the facts described in an inquiry make clear the inquiring judge has sufficient information to meet the initial “substantial likelihood” threshold and the conduct described, if true, clearly calls into question another judge’s fitness to continue in office. In such instances, the Committee has generally advised that “appropriate action” necessarily involves reporting the conduct to the Commission on Judicial Conduct for inquiry and investigation.

         Turning now to the conduct described here, we note the “substantial likelihood” prong is clearly met, as this judge personally reviewed the letter at issue.

         As to the “substantial violation” prong, we note that, although the matter was no longer pending before the lower-court judge or the appellate court at the time of the letter, the matter was still “pending or impending” within the meaning of the Rules Governing Judicial Conduct and our prior opinions, for purposes of the public comment rule (see 22 NYCRR 100.3[B][8]; 100.0[U]-[V]; Opinion 18-134). While judges may make “public statements [about a pending case] in the course of their official duties” (22 NYCRR 100.3[B][8]), here, the appellate court had already ordered the matter to be heard by another judge, and it was thus no longer before the lower-court judge in his/her official capacity. The lower court was fully aware of that order, as it was apparently the impetus for his/her letter.

         Significantly, the Court of Appeals has said “it is a violation of a judge’s solemn oath to abandon the role of neutral decision maker,” as this is “fundamentally incompatible with the responsibilities of judicial office” (Matter of Ayres, 30 NY3d 59, 63 [2017]). In Ayers, the Court affirmed the Commission’s finding that a town justice’s letters to a county court judge, who was sitting as an appeals judge, showed that the town justice had improperly abandoned his/her role as a neutral arbiter (id. at 65 [citations omitted]):

Petitioner’s actions during the Finch appeals, including his several ex parte communications to County Court advocating for dismissal of the matter and extolling the correctness of his decision making, were also highly improper. Additionally, the letters disparaged County Court, defendant, and defense counsel, which was also unacceptable. He persisted in this serious misconduct even after County Court informed petitioner that his comments were “troubling” and further instructed him as to the appellate process and petitioner’s proper role.

The Court of Appeals removed the judge (id. at 66; see also 2015 Ann Rep of NY Commn on Jud Conduct at 98 [by providing county court with legal arguments and facts not in the record and commenting on a litigant’s refusal to accept a settlement offer, the respondent judge abandoned his/her role “as a neutral arbitrator and became an advocate,” conduct which is “inconsistent with well-established ethical principles”]).

         In the inquiry before us, the lower court’s letter appears to share several characteristics the Court of Appeals and the Commission have characterized as serious misconduct. In our view, the letter as described in the inquiry creates an impression that the lower-court judge considers him/herself an advocate for his/her own decisions and orders, rather than an impartial arbiter of cases in which he/she has no personal interest. This is clearly prohibited (see Opinions 18-157 [appellate court must report a lower-court judge who improperly contacted appellate judges in an attempt to influence disposition of the case]; 98-77 [lower-court judge must not write to the appellate court advancing arguments on behalf of a party whose interests were adversely affected by an appellate decision reversing the judge’s ruling, since “a judge should not adopt the role of an advocate”]; Matter of Ayres, 30 NY3d 59 [2017]; 2015 Ann Rep of NY Commn on Jud Conduct at 98). The letter appears to be both an impermissible substantive public comment on a case pending before another judge (see 22 NYCRR 100.3[B][8]) and arguably an improper attempt to provide legal advice about what the defendant should argue or emphasize in the forthcoming proceedings before the new judge, which is likewise impermissible (see 22 NYCRR 100.4[G]). The appearance of impropriety is exacerbated by the lower-court judge’s copying the appellate court, as if to implicitly request reconsideration of its decision and/or influence the appellate court in future appeals (see Opinion 98-77).

         The conduct of the lower-court judge raises questions about his/her fitness to continue in office given the mandates of impartiality, fairness, and understanding of the proper role of a judge. Accordingly, the matter must be reported to the Commission on Judicial Conduct (see Opinions 18-157; 17-135; 10-175).