Opinion 21-19
January 28, 2021
Digest: A judge with knowledge that another judge with a public disciplinary history took steps to have an acquaintance’s matter reassigned to him/herself must report the other judge to the Commission on Judicial Conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(B)(4); 100.3(B)(6); 100.3(B)(6)(e); 100.3(D)(1); 100.3(E)(1)(a)(i); Opinions 19-64; 18-137; 18-74; 18-10; 17-177; 17-135; 17-116/17-132; 17-48; 15-124; 15-70; 14-162(A); 13-71; 13-69; 12-166; 11-125; 10-175; 10-14; 09-113; 08-83; 07-82; 03-59; Matter of Edwards, 67 NY2d 153 (1986).
Opinion:
The inquiring judge received a permissible ex parte application in the ordinary course and, on consideration, denied it. Thereafter, the inquiring judge was approached by a supervising clerk with a request to re-assign that application to another judge (Judge B), whom the clerk described as a “good friend” of the applicant. The clerk clearly conveyed the impression that Judge B had requested the application so that Judge B could grant it, and that it was not too late to re-assign the application to Judge B for further action.
The next day, the inquirer received a message from Judge B asking about the application. When the inquirer explained there was nothing to reassign because the application had already been decided, Judge B pointed out (in effect) there could be an amended or renewed application. Receiving no further answer from the inquirer, Judge B then sent several additional messages to the inquirer.
We have reviewed these messages and have drawn several conclusions about them, in light of Judge B’s public disciplinary history. Some of them appear to us “defensive” in nature. For example, the messages conveyed that Judge B called the clerk’s office about the forthcoming application in order to answer the applicant’s procedural questions about where the application should be addressed, that the clerk had offered to assign Judge B the application, and that Judge B had only accepted this offer after the clerk indicated it was permissible. At another point, Judge B said that if the inquiring judge preferred to keep the application, “that’s the end of it.”
Unfortunately, that was not the end of it. Judge B continued to press for an “answer” about whether the matter could be re-assigned to Judge B. Moreover, Judge B relayed a conversation Judge B had with the applicant weeks earlier about the forthcoming application, which conveyed the applicant’s representation that they had complied with the necessary legal requirements for the application to be granted.
The inquirer reported the incident to an administrative judge. Ordinarily, this might have been the end of the inquirer’s involvement in the matter. However, after Judge B proactively contacted the administrative judge to say there had been a “misunderstanding,” the administrative judge chose to return the call with the inquiring judge on the line. Judge B stated that the applicant was merely a longtime acquaintance, not a friend, and that Judge B had expressed a simple willingness to review and decide the application just as they would with any other applicant.
Following that conversation, Judge B sent an email to the inquirer and the administrative judge, expressing a hope that Judge B’s explanation “would clarify matters.” Although Judge B expressly disclaimed any effort to try to influence the inquirer and the administrative judge, Judge B also asked them to “consider” Judge B’s “viewpoint” that “alerting the administrative judge would fulfill any obligation” they may have.
The inquirer asks whether any further action must be taken.
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 must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge must perform judicial duties without bias in favor of any person (see 22 NYCRR 100.3[B][4]). A judge must disqualify in a proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias concerning a party (see 22 NYCRR 100.3[E][1][a][i]). 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,” unless an exception applies (22 NYCRR 100.3[B][6]).
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]). A judge is not required to conduct an investigation of alleged misconduct (see Opinion 07-82) and, therefore, may discharge their disciplinary responsibilities based on facts already known to the judge without further inquiry.
Discussion
In general, we have advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules (see Opinion 12-166). If the judge concludes that either of these two elements is missing, the judge need not take any action (see id.). If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct (see Opinions 13-71; 13-69). For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority (see Opinion 08-83). By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority (see Opinion 18-10). “[W]hat determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge” (Opinion 18-74 [citation omitted]). Even where it is mandatory to report the alleged misconduct to the Commission on Judicial Conduct, however, we note that a judge need not make a report if they know the conduct has already been reported (or self-reported) to the Commission (see e.g. Opinions 19-64; 18-137; 14-162[A]).
As Judge B has admitted speaking with the clerk, the “substantial likelihood” prong is easily satisfied. Even assuming Judge B did not consciously and deliberately set out to violate the Rules Governing Judicial Conduct, we nonetheless conclude that the conduct described here calls into question Judge B’s fitness to remain in office and therefore must be reported to the Commission on Judicial Conduct.
Whatever procedures for assignment of matters may exist in a particular locality, it is surely improper for a judge to affirmatively seek non-random assignment of the case of even a mere acquaintance based on that social relationship.1 That the judge might ethically have presided over the matter had it been assigned in the normal course (cf. Opinion 11-125 [no need to disqualify or disclose when attorney appearing before the judge is an acquaintance]) is beside the point. When a judge takes steps to treat the case of an acquaintance differently from a stranger’s by interfering in neutral procedures for the assignment of cases, an appearance of impropriety is evident.
Even assuming Judge B’s initial phone call to the clerk was merely a well-intentioned effort to request information about where the applicant should direct the application, Judge B, in acquiescing to the clerk’s suggestion that an acquaintance’s matter could be specifically directed to Judge B, displayed, at a minimum, a degree of insensitivity to how such a purposeful assignment might be perceived as special treatment (cf. Matter of Edwards, 67 NY2d 153, 154 [1986] [judge censured for “identifying himself as a Judge and inquiring about the procedures to be followed in resolving his son’s case”; “[t]he absence of a specific request for favorable treatment or special consideration is irrelevant”]). We note that a judge’s responsibility to be aware of their own ethical obligations is non-delegable; the judge may not rely on a clerk’s advice on matters of judicial ethics.2 That is particularly so where, as here, the judge has a history of public discipline and thus should be especially attuned to the strictures imposed by the Rules Governing Judicial Conduct.
In any event, Judge B not only acquiesced in the clerk’s suggestion that the matter could be assigned to Judge B, but then also seemingly undertook a campaign to see to it that this was done. This involved repeatedly communicating with the inquirer about it even after learning that the application had been decided. At a minimum, Judge B’s seemingly persistent efforts to effect reassignment of the matter to Judge B could be seen as suggesting some particularized interest in it. Even accepting Judge B’s explanation that these repeated inquiries reflected a mere willingness, rather than eagerness, to handle the matter, Judge B’s apparent push to take on the application created an appearance of impropriety. Members of the public learning of this conduct would wonder why Judge B was so invested in handling this matter, if not to ensure a favorable outcome for their acquaintance. Even if such suspicions are ultimately misplaced, Judge B should have been sensitive to the appearance created when they acted to divert an acquaintance’s application from the normal track applicable to a stranger.
We believe Judge B’s actions could cause an outside observer to conclude that, in Judge B’s court, “who you know” matters. When the applicant called Judge B to ask to whom to address an application, Judge B decided to call the clerk’s office personally in order to find out, rather than simply advising the applicant, as a member of the public, where to call. This initial choice, though itself potentially insubstantial, resulted in an extended discussion about possible non-random assignment of the matter to an extent that would never have been available to an applicant whose judicial acquaintance had not called on their behalf. At a minimum, the clerk was now aware that Judge B had some interest in this particular matter. Something about this interaction apparently led the clerk to believe or infer that Judge B also had some interest in its outcome and, more, that Judge B may have already prejudged the matter, since the clerk had the impression that Judge B planned to grant the application (which the inquiring judge had already denied).
Although Judge B later explained that the clerk had misunderstood the extent of Judge B’s interest, we are troubled that the clerk apparently came away from this conversation with the impression that Judge B would have granted the application, and would do so in the future if it were re-assigned to Judge B.
While the inquiring judge is not required to conduct an investigation of the alleged misconduct (see Opinion 07-82) or to attempt to resolve competing credibility concerns, the inquiring judge has expressed no belief that the clerk was untruthful in recounting the conversation. To the extent that the clerk’s conclusions are inconsistent with the judge’s explanations, the seriousness of the alleged misconduct, “at the very least, warrant[s] an investigation by the Commission” (Opinion 10-175).
Moreover, in the course of attempting to explain the “misunderstanding,” Judge B made comments to the inquirer suggesting that the application should be granted. Although a judge “may initiate or consider any ex parte communications when authorized by law to do so” (see 22 NYCRR 100.3[B][6][e]), we note that Judge B admitted having an ex parte conversation about the merits of the application prior to and in anticipation of its filing. We are troubled by Judge B’s decision to share the substance of that conversation with the inquiring judge, to whom the matter had been assigned in the ordinary course. Judge B’s gratuitous comment on behalf of the applicant creates at least the appearance of an attempt to influence the outcome of the matter should a future application be brought before the inquirer. Passing along the applicant’s ex parte version of events could be seen as lending the prestige of judicial office for the benefit of an acquaintance.
On these facts, whether all of Judge B’s statements and actions, either alone or in combination, may be susceptible of innocent explanation does not change the inquiring judge’s obligations. The conduct at issue suggests, at a minimum, a serious possibility that Judge B either lent the prestige of judicial office to advance the private interests of a longtime acquaintance; or committed in advance to rendering a favorable ruling for the acquaintance; or tried to influence a matter before another judge; or all of the above. “This conduct, if proved, goes to the core of [Judge B’s] fitness to continue in office, as it raises very serious questions about [Judge B’s] impartiality [and] fairness. ... At the very least, it warrants an inquiry by the Commission on Judicial Conduct” (Opinion 17-48). This is particularly so where, as here, Judge B has a public disciplinary history, since “what determines ‘appropriate action’ depends upon all the surrounding circumstances known to the [inquiring] judge, including ... whether the individual has any history of unprofessional or other conduct in violation of the Rules” (Opinion 18-74 [citation omitted]).
Certainly there have been instances “where conduct described in an inquiry to this Committee, if true, clearly called into question another judge’s fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission” (Opinion 10-175). Indeed, whenever a judge has attempted to intervene in or influence the outcome of a case, a report to the Commission has generally been required. Thus, in Opinion 03-59, we required a report to the Commission where a judge called the inquirer’s court attorney asking for help in getting the inquirer to disqualify so that a friend’s petition could be heard by a different judge (see also Opinion 17-135 [judge initiated discussion of inquiring judge’s case in non-public area of courthouse, expressing view of how case should be decided and the interest of a particular organization in the case’s outcome, and providing purported “facts” about the parties; report to Commission mandatory]; 15-124 [attempt to influence family member’s criminal case by approaching presiding judge, prosecutor, and court clerk; report to Commission mandatory]; 15-70 [attempt to influence family member’s traffic case by intimidating prosecutor; report to Commission mandatory]; 10-175 [letter from judge in support of application pending in inquiring judge’s court under circumstances indicating to the inquirer that the letter was not solicited by an appropriate agency; report to Commission mandatory]; 10-14 [judge offered to have police officer destroy traffic ticket that officer issued to inquiring judge’s relative; report to Commission mandatory]; 09-113 [part-time judge practiced law on multiple occasions in inquirer’s court in same county; report to Commission mandatory]; 17-177 [if inquirer knows identity of judge who attempted to use judicial status to influence bail decision in family member’s criminal case, must report to Commission]; 17-116/17-132 [if inquirer concludes that “judge improperly attempted to influence the outcome of a case, then the only appropriate action is to report the other judge to the Commission on Judicial Conduct”]).
Finally, Judge B’s effort to intervene in the inquiring judge and administrative judge’s decision as to what “appropriate action” to take in response to Judge B’s apparent misconduct is itself improper and could potentially call into question the sincerity of Judge B’s stated remorse for their own misjudgment (see Opinion 18-74 [“what determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule”] [citation omitted]).
Accordingly, Judge B’s conduct must be reported to the Commission on Judicial Conduct.
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1 This is to be distinguished from a scenario where, for example, a judge who has presided in one matter might request that certain related matters be assigned to them.
2 While clerks and chambers staff may help alert a judge to potential ethical issues, we note that their advice does not confer the statutory presumption of proper conduct that a judge may obtain by taking action “in accordance with findings or recommendations contained in an advisory opinion” issued by our committee (Judiciary Law § 212[2][l]).