Opinion 21-153
October 28, 2021
Digest: A judge who receives a message from another judge asking them to consider a fine for an acquaintance lower than the fine the prosecutor is recommending must report the other judge to the Commission on Judicial Conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2©; 100.3(B)(4); 100.3(B)(6); 100.3(D)(1); Opinions 21-78; 21-19; 17-116/17-132; 15-124; 15-70; 10-175; 07-82; 89-04.
Opinion:
The inquiring town justice received a text message from another sitting judge (Judge B) asking if the inquirer was presiding over an upcoming parking ticket calendar. When the inquirer responded affirmatively, Judge B sent another text concerning a pending parking ticket. This message specifically named the defendant, identified the defendant’s governmental employment and connection to Judge B, and suggested it would be “great” if the inquirer considered the defendant’s governmental service “when deciding whether or not to go lower on the fine than” the prosecutor is recommending. The inquirer advised Judge B that the message was improper and declined to act upon the request. The inquiring judge now asks if they must report this incident 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]). 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]) and must perform judicial duties without bias against or in favor of any person (see 22 NYCRR 100.3[B][4]). 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.
We note, initially, that the “substantial likelihood” prong is satisfied by Judge B’s text messages directly to the inquiring judge. The “substantial violation” prong is also met where, as here, the inquiring judge has determined that Judge B was attempting to influence the disposition of a specifically identified case before the inquirer.
Accordingly, since the two-prong test is met, the sole issue for our consideration is what constitutes “appropriate action” under the circumstances (see Opinion 21-78; 22 NYCRR 100.3[D][1]). We have advised that “whenever a judge has attempted to intervene in or influence the outcome of a case, a report to the Commission has generally been required” (Opinion 21-19 [judge took affirmative steps to have an acquaintance’s matter re-assigned to him/herself, including repeatedly messaging the judge who decided the matter]; see also e.g. Opinions 10-175 [unsolicited letter from a judge in support of an application for early release of probation conditions pending in inquiring judge’s court]; 15-70 [attempt to influence family member’s traffic case by intimidating prosecutor]; 15-124 [attempt to influence family member’s criminal case by approaching presiding judge, prosecutor and court clerk]; 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 Commission on Judicial Conduct”]; cf. Opinion 89-04 [judge should not voluntarily write a letter in support of a former law clerk in connection with a plea bargain in a pending criminal prosecution]).
Here, too, the alleged conduct is likely to undermine public confidence in the judiciary as it is an attempt by Judge B to improperly influence the inquiring judge. Such conduct calls into question Judge B’s fitness to continue in judicial office and the inquiring judge has an affirmative duty to report Judge B to the Commission on Judicial Conduct.