Opinion 20-207

January 28, 2021

Digest:         Where a judge has already determined that it is necessary to report another judge for an apparent incident of “ticket-fixing,” the judge is not relieved of the duty to report merely because the other judge resigned from the bench in the interim.

Rules:          Judiciary Law § 47; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 10-14; 04-47.

Opinion:

         The inquiring supervising judge recently advised a town justice that they would be reporting the justice’s apparent incident of “ticket-fixing” to the Commission on Judicial Conduct. The town justice has now resigned from office, citing health concerns, and the inquiring judge believes it “highly unlikely” the justice will ever seek judicial office again. The inquiring judge asks if they must still report the former justice to the Commission.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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]).

         Here, the inquiring judge has already determined that the two-prong test was met, i.e. that they received information indicating a substantial likelihood that another judge committed a substantial violation (ticket-fixing). Given the gravity of the apparent misconduct, the inquiring judge also determined that the “appropriate action” was to report the other judge (see Opinion 10-14 [noting that the Commission considers ticket-fixing removable misconduct]).

         Thus, the sole question here is whether the town justice’s decision to resign from judicial office in the interim, on learning the misconduct was going to be reported, excuses the inquiring judge from reporting. We believe it does not. We note the following provisions of Judiciary Law § 47:

The jurisdiction of the court of appeals and the commission pursuant to this article shall continue ... in any case in which the commission’s determination that a judge should be removed from office shall be transmitted to the chief judge of the court of appeals within one hundred twenty days after receipt by the chief administrator of the courts of the resignation of such judge. Any determination by the court of appeals that a judge who has resigned should be removed from office shall render such judge ineligible to hold any other judicial office.

Thus, even if it is unlikely the town justice would affirmatively seek judicial office in the future, we understand that the Commission and the Court of Appeals could potentially, if they conclude the allegations are substantiated, take steps to prevent the town justice from serving in the New York judiciary under any circumstances whatsoever (see id.; cf. Opinion 04-47 [a judge with knowledge that a disbarred attorney has acted as an unlicensed real estate salesperson should report the matter to the attorney grievance committee so that such information is available in the event application is made for reinstatement to the bar]). The fact that the town justice has resigned his current position does not therefore relieve the inquirer of their duty to report the misconduct.