May 5, 2016
Digest: (1) A judge who concludes that grave inconsistencies at the core of another judge’s sworn testimony concerning his/her performance of judicial duties constitute perjury or intentional deception must report the witness-judge to the Commission on Judicial Conduct. (2) Conversely, if he/she concludes the witness-judge did not deliberately testify falsely or intentionally attempt to mislead the court, then he/she has full discretion to take some other, less severe action appropriate to the circumstances.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 15-124; 15-119; 14-140; 13-146; 12-166; 10-175; 10-85; 08-83; 07-129; 91-36.
On a motion challenging an arrest warrant, the inquiring judge heard testimony from another judge concerning the time and place he/she personally signed or stamped the warrant. When confronted with evidence disproving his/her testimony, the witness-judge testified that he/she “must have gotten the dates wrong” and actually signed it on a different day. However, the new date to which the witness-judge testified was earlier than the date listed on the face of the warrant. The inquiring judge found the witness-judge’s testimony “to be disingenuous, or at best, confused” and asks whether he/she must report the witness-judge 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]). Therefore, 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]).
As the Committee advised in Opinion 13-146 (citations omitted):
A judge is not required to conduct an investigation of the alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has 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.
Although these determinations are ordinarily left to the inquiring judge’s discretion, there have been instances where the facts described in an inquiry to the Committee make clear the inquiring judge has (or does not have) sufficient information to meet the initial “substantial likelihood” threshold (see e.g. Opinion 15-119) and/or that the conduct described, if true, clearly calls into question another judge’s fitness to continue in office (see e.g. Opinions 15-124; 10-175).
Here, the “substantial likelihood” prong is clearly met, as the judge heard the witness-judge’s inconsistent sworn statements while presiding over a case. Moreover, the judge has already concluded the witness-judge’s sworn testimony was “disingenuous, or at best, confused” concerning significant details of his/her performance of judicial duties concerning the arrest warrant –- the precise issue about which the witness-judge was called to testify -– thus satisfying the “substantial violation” prong.1 Accordingly, the sole question is whether the misconduct is so serious that it calls into question the witness-judge’s fitness to continue in office.
If this judge concludes, after evaluating all relevant known circumstances, that the grave inconsistencies at the core of the witness-judge’s testimony concerning his/her performance of judicial duties constitute perjury or intentional deception, the inquiring judge must report him/her to the Commission (cf. Opinion 07-129 [perjury implicates an attorney’s honesty, trustworthiness or fitness as a lawyer]).
However, if the judge concludes that the witness-judge did not deliberately testify falsely nor intentionally attempt to mislead the court, then the judge has full discretion to take some other, less severe action which he/she determines is ethically appropriate under the circumstances (cf. Opinion 91-36 [where no improper motivation by non-lawyer judge, administrative measures constitute appropriate action]).2
1 The Committee does not believe, and does not mean to suggest, that any imperfection whatsoever in a judge’s testimony as a witness is necessarily a violation of the Rules Governing Judicial Conduct, let alone a substantial one. Here, the witness-judge’s testimony concerning the date and time on which he/she allegedly signed or stamped an arrest warrant was the focus of the hearing and the core of his/her testimony; the inconsistencies were by no means peripheral, trivial, or insubstantial, but were instead critically important to the validity of the warrant.
2 In general, “[w]hat determines ‘appropriate action’ ... depends upon all the surrounding circumstances known to the judge, including an assessment of whether the [individual], if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the [individual] has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge” (Opinion 10-85). Appropriate action could include, for example, “dealing with the matter administratively” (Opinion 12-166), “discussing with [the other judge] the possibility of a treatment program and/or making a suitable referral thereto” (Opinion 08-83), or “discuss[ing] the situation with the other judge and counsel[ing] him/her on the ethics of the claimed inappropriate conduct and then decid[ing] what if anything else should be done depending on the judge’s response to [such] advice” (Opinion 14-140).