Opinion 22-148

October 27, 2022

Digest:     A town justice who receives correspondence from their co-judge’s election opponent with accusations against the co-judge, but has no first-hand knowledge of any misconduct, is not obligated to take any action.

Rules:       22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 15-138/15-144/15-166; 15-119; 14-50; 13-146; 10-86; 10-64; 07-135.

Opinion:

The inquiring part-time town justice received an email from their co-judge’s election opponent, which included several screen shots of campaign-related social media posts and a campaign flyer. In the email, the election opponent accuses the co-judge of: (1) making, authorizing and/or approving “malicious personal attacks” in “libelous” social media posts, which allegedly endanger the election opponent’s personal safety; and (2) using an unauthorized courtroom photograph in campaign literature. The election opponent asks the inquiring judge to tell the co-judge to refrain from engaging in this and other allegedly improper conduct. Although the judge does not participate in the social media platform at issue and had no first-hand knowledge of the truth of these accusations, the judge nevertheless shared the election opponent’s email with a court administrator for advice about how to proceed. Thereafter, the judge replied to the co-judge’s election opponent to acknowledge receipt and explain that, as a sitting judge, they “could not respond or get involved any further on this matter.” The inquiring judge now asks if they have an ethical obligation to report the co-judge or take any other action.

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]). Thus, if a judge receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]).

           A judge is not required to conduct an investigation of alleged misconduct and, therefore, may discharge their disciplinary responsibilities based only on facts already known to the judge without further inquiry (see e.g. Opinion 15-119). Moreover, we have advised that a judge who has first-hand knowledge of all the facts and persons involved in a particular situation is ordinarily in the best position to “evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge” (Opinion 15-138/15-144/15-166). This general principle “must apply with particular force” where, as here, the inquirer is “not [a] supervising or administrative judge[]” and has “no direct personal knowledge whatsoever concerning the underlying allegations,” but instead has “merely heard [a] second- or third-hand report[] concerning conduct that did not arise in connection with a proceeding before” them (id.). Indeed, we noted a judge has “especially wide discretion” in such circumstances (id.)

           In some instances, the facts described in an inquiry make clear the inquiring judge lacks sufficient information to meet the initial “substantial likelihood” threshold (see e.g. Opinions 14-50 [judge “does not have information indicating a substantial likelihood of any wrongdoing by the named individuals”]; 10-86 [judge who believes charges in criminal complaint against lawyer would, if proven, constitute a substantial violation is not required to take any disciplinary action unless the judge also concludes there is a substantial likelihood that the charges are true]; 10-64 [judge “does not know the substance of the alleged false statements or that the attorney’s allegation is true”]). Absent first-hand information or credible information from a reliable source of a “substantial likelihood” of a violation of the Rules, the first prong of the test is not satisfied and thus, the obligation to take “appropriate action” is not triggered.

           On the facts presented, the inquiring judge has no apparent basis to draw any conclusion as to whether the allegedly “libelous” statements are true or false, made in malice or good faith, or likely to endanger anyone’s personal safety. Indeed, screen shots forwarded by a co-judge’s election opponent do not even establish reliable first-hand knowledge of the contents or authors of the posts. Nor does the inquiring judge know if the courtroom photograph falls within an established exception (see e.g. Opinion 07-135 [permitting use of published news photographs taken in the courtroom during a public trial]). As the inquiring judge lacks any first-hand knowledge of any misconduct, we conclude the judge is under no obligation to take any action, including that requested by the election opponent.