Opinion 23-62/23-63/23-111
September 7, 2023
Digest: On the facts presented, the inquiring administrative judge has full discretion to determine whether there is a substantial likelihood that a part-time judge has committed a substantial violation of the Rules Governing Judicial Conduct and, if so, what action is appropriate under the circumstances.
Opinion:
A judge with administrative or supervisory responsibilities asks about their ethical obligations with respect to a part-time judge (Judge B) who maintains outside full-time employment as the head of a not-for-profit organization. The non-profit advocates for therapeutic/ rehabilitative alternatives to incarceration and is seeking to establish, and obtain necessary legal or regulatory approvals for, a new facility that would provide such services.[1] The administrative judge also states that Judge B published several opinion pieces after assuming judicial office, in connection with Judge B’s outside employment, and used their outside email address to contact a high-level administrative judge on certain topics. The administrative judge is concerned about these activities and is considering whether to “temporarily remove” Judge B from criminal matters and/or to take any disciplinary action against Judge B. If it is necessary to take action, the administrative judge asks if measures such as counseling will suffice, or whether the conduct must be reported 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]). Accordingly, 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]). The judicial duties of a judge take precedence over all the judge’s other activities (22 NYCRR 100.3[A]). However, a part-time judge may accept private employment provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) nor allow outside relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). 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 also must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]; see also 22 NYCRR 100.0[V] [an impending proceeding is “one that is reasonably foreseeable but has not yet been commenced”]).
Discussion
The sole judicial ethics question here is whether Judge B’s activities, as described by the administrative judge, warrant disciplinary action under Section 100.3(D)(1). Given this question, we now return to the administrative judge’s extensive submissions, as clarified by the administrative judge, in order to highlight specific factual details that may have some bearing on the issue.
A. Email to High-Level Judge
This email was sent from Judge B’s outside email address to a high-level administrative judge, after Judge B assumed judicial office. Both the email address itself and the signature block of the email identify Judge B as the head of the non-profit. The email refers to certain actions Judge B took before assuming judicial office, and also proposes to meet and discuss the establishment and operations of a mental health court with other judges. While we see no impropriety in the content of the email as characterized by the inquiring judge, we note that use of Judge B’s outside email address and outside signature block for judicial business could suggest a blurring of the lines between Judge B’s judicial role and Judge B’s extra-judicial employment.
B. Published Opinion Pieces
The inquiry included two op-eds that were clearly published after Judge B assumed judicial office, as well as a third one that was published before Judge B assumed judicial office, which we decline to consider. While it may be permissible to comment on pending legislation or policies concerning the law, the legal system, or the administration of justice, we note that each article refers to a high-profile case that is still pending or impending, as the defendant was remanded to the custody of the Office of Mental Health following a determination that the defendant was not fit for trial, and has not yet been discharged. These references could be perceived as an attention-getting topical “hook” to argue for Judge B’s position about a particular type of criminal justice reform. In one article, Judge B names the defendant several times, and suggests that both the victim and the defendant “deserved better” from the criminal justice system.
As described, these published op-eds appear to violate the public comment rule, and do so specifically in the context of advocacy related to Judge B’s outside employment.
C. Outside Employment
Judge B’s non-profit employer appears to be an entity dedicated to improvement of the law, the legal system or the administration of justice, extremely similar to the type of organization discussed in Opinion 09-131 (a non-profit organization dedicated to the reform of the state court system) and Opinion 22-48 (not-for-profit center for social and criminal justice, which “advocates for criminal justice reform” and offers a residential treatment facility as an alternative to incarceration for certain accused felony offenders outside the judge’s county only). The administrative judge has not drawn our attention to any specific issues beyond those addressed in prior opinions.
Analysis
As we explained in Opinion 21-19 (citations omitted):
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. If the judge concludes that either of these two elements is missing, the judge need not take any action. 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. 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. 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.
We have previously noted that the
Committee “cannot judge the credibility of conflicting allegations and is not
empowered to do so” (Opinion 12-162 [citation and ellipses omitted]).
On the facts presented, we conclude the administrative judge is in the best position to assess whether there is a substantial likelihood that Judge B has committed a substantial violation of the Rules Governing Judicial Conduct.
If the administrative judge concludes this standard is not met, the judge need not take any action pursuant to Section 100.3(D)(1) on these facts.
However, if the administrative judge concludes the two-prong test is satisfied, he/she must take appropriate action. We note that the inquiring judge has a wide range of discretionary administrative tools at their disposal which may help minimize any appearance of impropriety, including (without limitation) counseling Judge B and/or assigning Judge B to non-criminal matters while Judge B remains employed as the head of the non-profit. Moreover, in determining what action is appropriate under the circumstances, the judge may consider Judge B’s motivations and receptiveness to guidance about their ethical responsibilities going forward.
Of course, if the inquiring judge concludes that there is a substantial likelihood that Judge B has engaged in a “substantial violation” of the Rules, and that the misconduct is so egregious that it seriously calls into question Judge B’s fitness to continue in office, then the inquiring judge must report the conduct to the Commission on Judicial Conduct. On the facts presented, this and all other determinations concerning Judge B’s conduct are left to the discretion of the inquiring administrative judge.
[1] We assume that the facility will not accept any referrals from Judge B’s court (compare e.g. Opinion 89-109 with Opinion 22-48).