Opinion 23-120

October 26, 2023

Digest: A town justice is not required to report a violation of a town ordinance that came to the judge’s attention during a small claims proceeding, but may do so in his/her sole discretion.  If the judge chooses to report the violation, he/she may not preside over any resulting proceedings.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)- (2); 100.3(E)(1); 100.3(E)(1)(a)–(f); 100.3(E)(1)(d)(i); 100.3(E)(1)(e); Opinions 22-100; 16-154; 16-25; 09-171; 07-144; 06-13; 03-110.

Opinion:

          While presiding in a landlord/tenant dispute, the inquiring town justice became aware of an apparent violation of the town code by the landlord. The judge asks if he/she must report the violation to the town code enforcement officer.  If reporting is not ethically required, the judge asks if it is ethically permissible.

          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 a lawyer or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).  A judge also must disqualify him/herself in several enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  For example, a judge may not preside if he/she is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i]) or is likely to be a material witness (see 22 NYCRR 100.3[E][1][e]).

          A judge’s disciplinary obligations refer only to “a lawyer” or “another judge” (22 NYCRR 100.3[D][1]-[2]), and thus “a judge need not report criminal or other misconduct by persons who are neither lawyers nor judges, even if the misconduct occurs in a case before the judge” (Opinion 16-25 [citing prior opinions]; see also Opinion 22-100 [a JHO has no obligation to report safety concerns to the residents of the building]; 16-154 [judge is not obligated to report habitability concerns to a local code enforcement officer]).

          Accordingly, the inquiring judge has no ethical obligation to report his/her conclusion that a violation has occurred to the town code enforcement officer (see e.g. Opinions 09-171; 07-144; 06-13; 03-110).  The judge may nonetheless, in his/her sole discretion, report the violation to the code enforcement officer, just as he/she generally may report other suspected crimes or violations (see id.).

          However, if the judge chooses to make a formal or informal complaint to the code enforcement officer, or otherwise reports the relevant facts to him/her, the judge must not preside over any eventual complaint or proceeding, as he/she may reasonably be perceived as the complainant and/or a fact witness (see Opinion 16-154).