Opinion 17-164

December 7, 2017


Digest:         A judge who has reliable, first-hand knowledge in his/her appellate capacity that another judge is wilfully disregarding both his/her judicial duties and a court order instructing him/her to perform those duties as necessary for an appeal, to the litigants’ detriment, must report the other judge’s conduct to the Commission on Judicial Conduct.


Rules:          CPL 460.10(3)(d)-(e); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(A); 100.3(B)(1); 100.3(B)(7); 100.3(D)(1); 100.6(B); Opinions 17-48; 16-46; 15-138/15-144/15-166; 15-94; 10-14.


         A county court judge who presided over an appeal from a criminal conviction in a trial court of limited jurisdiction asks about his/her ethical obligations concerning the trial judge’s (Judge B’s) failure to perform certain judicial duties. On the appellant’s motion, the county court judge ordered Judge B to provide a return within twenty days, as he/she had failed to do so within the prescribed period (see CPL 460.10[3][d]-[e]). Before the deadline elapsed, the inquiring judge sent a letter to all counsel and Judge B, reiterating the time frame for filing the return and setting forth guidelines for requesting an extension. In response, Judge B called the inquiring judge’s chambers and said he/she “was very busy” and they would “get [the return] when [they] get it.” So far, at least three months have elapsed, with no further action or explanation forthcoming; Judge B has neither requested an extension nor filed a return. The county court judge also learned that two post-conviction motions in the same underlying case have been pending and undecided for over two years.


         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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][1]).

         In general, judges have wide discretion to make the two-prong threshold determination whether there is a “substantial likelihood” another judge has committed an ethical violation and (if so) whether it constitutes a “substantial violation” of the rules (22 NYCRR 100.3[D][1]; see Opinions 15-138/15-144/15-166; 10-14). As we advised in Opinion 16-46 (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.


         All these determinations are ordinarily left to the inquiring judge’s discretion (id.). Indeed, the Committee “cannot judge the credibility of allegations of misconduct and is not empowered to do so” (Opinion 15-94 [citations and internal quotation marks omitted]). However, as stated in Opinion 17-48 (citations omitted):


There have nonetheless been instances where the facts described in an inquiry make clear the inquiring judge has sufficient information to meet the initial “substantial likelihood” threshold and the conduct described, if true, clearly calls into question another judge’s fitness to continue in office. In such instances, the Committee has generally advised that “appropriate action” necessarily involves reporting the conduct to the Commission on Judicial Conduct for inquiry and investigation.

         Here, the “substantial likelihood” prong is clearly met, as the inquiring judge has reliable, first-hand knowledge in his/her capacity as an appellate judge.

         As for the “substantial violation” prong, the inquiring judge attached a copy of his/her judicial order instructing Judge B to perform statutorily required duties (see CPL 460.10[3][e]), as well as correspondence concerning the deadline and how Judge B could request an extension if needed. On receipt of these items, Judge B orally expressed complete indifference to his/her judicial duties, amounting to outright defiance. The inquiring judge has observed the detrimental effect on the litigants – particularly the defendant – due to Judge B’s protracted inaction on the return, as well as two additional post-trial motions that have been pending for more than two years. Based on these personal observations, the judge has already concluded Judge B’s attitude and conduct over an extended period of time shows extreme indifference to his/her adjudicative responsibilities, thus satisfying the “substantial violation” prong. Accordingly, the sole question is whether the misconduct is so serious that it calls into question Judge B’s fitness to continue in office.

         We believe it does. Although a part-time judge necessarily has greater freedom of action with respect to outside employment and business activities than a full-time judge (see generally 22 NYCRR 100.6[B]), his/her judicial duties still “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A] [“The judge’s judicial duties include all the duties of the judge’s office prescribed by law”]). A judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]); dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]); respect and comply with the law; and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         Here, Judge B’s persistent, ongoing failure to comply with a court order requiring him/her to perform statutory duties – entirely unexplained except for one defiant telephone call – operates to the detriment of a defendant who wishes to challenge his/her criminal conviction. That Judge B has left multiple post-trial motions undecided in the same case for at least two years can only underscore an impression that other matters take precedence over his/her judicial duties.

         The described conduct, if proved, reveals a profound indifference to judicial duties and to the rule of law, which goes to the core of Judge B’s fitness to continue in office.

         Accordingly, the inquirer must report Judge B’s conduct to the Commission on Judicial Conduct.