Joint Opinion 13-70/13-74
June 13, 2013
Digest: A judge’s request that local authorities further investigate a crime that allegedly occurred in the court office, standing alone, does not rise to the level of a “substantial likelihood” that the judge has violated the Rules Governing Judicial Conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(C)(1); 100.3(D)(1); Opinions 12-166; 12-55; 11-10; 10-07; 07-193; 07-129; 07-104; Joint Opinion 05-105/05-108/05-109.
Two individuals subject to the Rules Governing Judicial Conduct (the Rules) have become aware that a sitting judge has written in his/her official capacity to local authorities to call for criminal charges against one or more named “suspects” who may have committed a crime in the judge’s court office. According to the inquirers, the judge has identified as the basis for his/her request an apparent similarity between the crime that was allegedly committed in the judge’s court office and certain criminal charges already pending in another court against those suspects. Under the circumstances presented, the inquirers ask whether they must report the judge’s conduct to the Commission on Judicial Conduct.
An individual subject to the Rules 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]). An individual subject to the Rules who receives information indicating a “substantial likelihood” that a judge has committed a “substantial violation” of the Rules must take “appropriate action” (see 22 NYCRR 100.3[D]).
In general, the Committee has advised that the judge or quasi-judicial official 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. Accordingly (Opinion 12-166):
If the judge concludes that either of these two elements is missing, the judge need not take any action. However, if a judge concludes that another judge’s alleged conduct constitutes a substantial violation of the rules and that the violation is so serious that it “calls into question a judge’s fitness to hold judicial office” (Joint Opinion 05-105/05-108/05-109), the Committee has advised that the judge must report the matter to the Commission on Judicial Conduct. But, if a judge determines that the violation at issue is not so serious, or is merely technical in nature, it is within his/her discretion to take less severe, ethically appropriate action, such as dealing with the matter administratively (see id.).
Ordinarily, resolution of these issues is left entirely to the inquiring judge’s discretion. In rare circumstances, the Committee has advised either that the described conduct must be reported (see e.g. Opinion 07-129; Joint Opinion 05-105/05-108/05-109) or need not be reported because it “does not rise to the level of a ‘substantial likelihood’” of reportable misconduct (see Opinion 12-55 [an attorney’s refusal to make potentially incriminating statements, standing alone, does not rise to the level of a “substantial likelihood” that the attorney has committed professional misconduct]).
The Committee has previously recognized that a judge who is a crime victim in his/her official capacity “is entitled to the rights that are afforded any other crime victim,” and need not conceal his/her identity as a judge (Opinion 07-193). Thus, the Committee has advised that a judge whose chambers were burglarized may, in his/her capacity as a crime victim and in response to the District Attorney’s request, use official letterhead for a written statement expressing his/her views on whether the defendant should be released on parole (see Opinion 07-104); a judge who is the victim of a crime perpetrated by an individual the judge had sentenced to prison for committing a different crime may appear in court when the defendant is sentenced for the crime and speak about any matter relevant to sentencing (see Opinion 07-193); and a judge may comply with a District Attorney’s request to prepare a Victim Impact Statement setting forth the judge’s views as to sentence only, for use when the defendant who forged the judge’s signature to court documents is sentenced (see Opinion 10-07). Moreover, the Committee has noted that when a judge is victimized in his/her capacity as an elected public official, “the public has a legitimate interest in knowing how the crime has affected the judge and his/her ability to continue to serve the public” (Opinion 11-10). Thus, a judge who is the victim of a crime in his/her judicial capacity may respond to inquiries from the media about how the crime has affected him/her, both personally and officially, while the individual who committed the crime is awaiting sentencing in federal court but may not comment about the prosecution of the case or the sentencing while the case is pending, including any comment indicating or speculating as to how he/she might have conducted the case or what sentence he/she would impose (see id.).
The Committee has reviewed the writing at issue and believes that, although it is couched in strong language, it can be fairly interpreted as a request that local authorities further investigate and charge one or more suspects with a crime that involves court property and took place on court premises. There is no pending or impending proceeding involving the crime that allegedly took place in the judge’s court office. Moreover, although the judge expresses confidence about the identity of the suspects, the judge also frankly identifies the basis of his/her request; that is, the judge does not claim any personal knowledge of the suspects’ guilt, but instead sets forth the facts from which the judge infers their guilt. Therefore, under the circumstances presented, the Committee concludes that the judge’s request that local authorities further investigate a crime that allegedly occurred in the court office, standing alone, does not rise to the level of a “substantial likelihood” that the judge has violated the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[D]). Accordingly, the inquirers are not ethically required to report the judge’s conduct to any disciplinary authority.