Opinion 09-132

October 1, 2009

Dear Justice :

         This responds to your inquiry (09-132) asking whether you have any reporting obligations since you have become aware, after the fact, that a defendant’s close relative, who also is a town justice, mailed you a request for an adjournment on behalf of a defendant in a traffic case. You enclosed a copy of the hand-written note received in the court which does not in any way indicate that the writer is a town justice. The salutation reads “To Whom It May Concern”, and advises that any questions should be directed to the writer, listing his/her first and last names, but not his/her judicial title. However, the writer enclosed the note in an envelope that bears a return address stamp that does include the writer’s name and judicial title. You advise that before you saw the envelope, you arraigned the defendant and, after the defendant met with the prosecutor, you accepted his/her guilty plea to a reduced charge. Once you saw the envelope, you questioned the defendant about the writer’s identity and learned that he/she is the defendant’s brother. According to your inquiry, you told the defendant that had you seen the envelope earlier, you would have sought to have the case re-assigned. There is no indication that the reason proffered for the adjournment was not legitimate or that the request for the adjournment would have been improper had it come directly from the defendant.

         A judge’s obligation to report another judge for violating the rules governing judicial conduct is set forth in detail in Opinion 08-146. This Committee has consistently advised that a judge must decide for him/herself whether another judge’s conduct is a substantial violation of the rules triggering an absolute duty to report (see e.g. Opinion 92-42 [whether part-time lawyer-judge who requested the clerk to refrain from issuing an arrest warrant for a client who would be represented by the part-time judge’s law partner committed a substantial violation of the rules by asking a personal favor or was exercising accepted practice of requesting that the court refrain from issuing a bench warrant on condition that client appear at specified time was question for inquiring judge to resolve]).

         However, on occasion, the Committee has determined that there is no question that certain conduct is so egregious that it constitutes a substantial violation of the rules governing judicial conduct, and has advised the inquiring judge of his/her affirmative obligation to report the misconduct (see e.g. Opinion 00-64 [where inquiring judge has direct, personal knowledge that another judge has overtly engaged in impermissible political activity it is Committee’s view that any inquiry into and assessment of the significance of such conduct rests with the Commission on Judicial Conduct]; Opinion 08-83 [judge who has reliable information from, inter alia, first-hand observations of the circumstances that another judge drove a car recklessly while intoxicated and also has substantial information that the other judge presided more than once while intoxicated must report the other judge to the Commission on Judicial Conduct and to the appropriate administrative judge because the other judge’s actions call into question his/her fitness to continue in judicial office]).

         If you decide after reading these opinions, enclosed for your convenience, and after considering all the facts and circumstances in this case, that the other judge’s conduct is insubstantial or a mere technical violation of the rules, then it is entirely within your discretion whether to report the judge’s conduct or not. And, if after reconsideration, you have any further questions, please feel free to contact the Committee again.

                                                 Very truly yours,

                                                 George D. Marlow

                                                 Committee Chair

                                                 Justice of the Supreme Court (Ret.)