In Garson, the court reversed the dismissal of an indictment charging the defendant judge with violating New York Penal Law § 200.25, receiving a reward for official misconduct by violating his duty as a public servant, but affirmed dismissal of the indictment charging a violation of § 195.02(2). 848 N.E.2d at 1265. In that case, the defendant received various gifts from an attorney in return for referring cases, in violation of the Rules of Judicial Conduct enacted in New York following constitutional amendment and pursuant to an express legislative grant of power to the court. The Garson court distinguished La Carrubba in two ways.
First, the court recognized the mandatory nature of New York’s Rules of Judicial Conduct, as opposed to the earlier code of conduct. Id. at 1271-74. Second, the court recognized that § 200.25 rested “not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules.” Id. at 1273. “Had the judge as a public servant violated ethical duties alone — without accepting a benefit for the violation — and had the action not otherwise been prohibited by the Penal Law, the public servant would be subject only to discipline in a proceeding brought by the Commission on Judicial Conduct.” Ibid.
Delaware, which also criminalizes the failure to perform a duty inherent in a public office, has limited the use of ethical standards to define criminal conduct. See, e.g., Green, supra, 376 A.2d at 428 (concluding a duty “inherent in the nature of a public servant’s office does not include the duty of avoiding violation of unspecified conflict-of-interest or other ethical standards”).
Some states that criminalize the performance of unauthorized acts or acts in excess of official powers, as does N.J.S.A. 2C:30-2a, have rejected application of ethical guidelines to define the nature and scope of the official duties of an office. See, e.g., State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987) (concluding the code of professional responsibility and city ethics code could not be used to define the “lawful authority” of a municipal prosecutor accused of official misconduct for dismissing a friend’s traffic tickets); Clayton v. Willis, 489 So. 2d 813, 815-16 (Fla. Dist. Ct. App. 1986) (rejecting violations of the state Code of Judicial Conduct as a basis for judge’s alleged criminal misconduct in fraudulently abusing and exceeding his powers).
As the motion judge noted, the Code does not expressly include a duty to enforce another court’s warrant. The State cites Code of Conduct for Judiciary Employees, Canon 1G (2014), which provides, “No court employee shall refuse to enforce or otherwise carry out any properly issued rule or order of court.” However, that Code, which in this instance directs the ministerial duties of judiciary personnel, does not apply to a judge. Similarly, the State’s reliance on Administrative Directive #14-06, “Probation Field Supervision and Safety Standards,” (August 3, 2006), is unavailing. That directive, which also does not apply to judges, instructs probation officers to cooperate with law enforcement in the supervision of probationers and in effecting the arrest of violators.
A fair point for the prosecution to make in rebuttal is that these duties logically apply to judges even though they are specifically directed towards other members of the judiciary. This is because judges should be held to at least as high of an ethical standard as their staffs and/or probation officers.
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