October 20, 2016
Digest: (1) Where the Commission on Judicial Conduct has formally charged a judge with misconduct in a formal written complaint, based on a complaint from the county District Attorney, the judge is disqualified in all cases prosecuted by the District Attorney’s office while the disciplinary proceeding remains unresolved. (2) The judge may preside in criminal matters where the District Attorney has delegated authority to a private attorney, town attorney, town prosecutor, law enforcement officer, or any other person who is not directly employed in the District Attorney’s office. (3) Once the disciplinary proceeding is resolved, the judge may write in for further guidance on his/her obligations going forward.
Rules: Judiciary Law § 44(4)-(5); 22 NYCRR 100.1; 100.2(A); 100.2(C); 100.3(E)(1); Opinions 16-129; 15-218; 15-37; 14-121; 13-75; 10-170/11-03; 09-191; 09-136; 02-96; 97-102.
The Commission on Judicial Conduct has charged the inquiring judge with misconduct in a formal written complaint, signed and verified by the Commission’s administrator (see Judiciary Law § 44), based on an initial report or complaint filed by the county’s District Attorney. The judge’s attorney is trying to negotiate a resolution without a hearing based on an agreed statement of facts, which could potentially result in either public or private discipline (see Judiciary Law § 44). As the judge believes he/she can be fair and impartial in cases prosecuted by the District Attorney’s office, the judge asks if recusal is mandatory:
1. When an assistant district attorney appears in his/her court;
2. In all criminal cases, even there is no personal appearance by the District Attorney or any assistant district attorney;
3. In Vehicle and Traffic Law matters, when a defendant pleads guilty by mail;
4. In Vehicle and Traffic Law matters, where the assistant district attorney and the defendant negotiate a proposed resolution and “the ADA does not appear [in court], but endorses the recommendation by signing a form.”
Finally, the judge asks for clarification about the trigger for disqualification: Is it when the Commission “charges the judge with misconduct in a formal written complaint,” or when the Commission “directs that a hearing be held”?
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
A judge need not disqualify him/herself from a case merely because an attorney or litigant has reported the judge to the Commission on Judicial Conduct, or even because the Commission has contacted the judge about the complaint while investigating it (see e.g. Opinions 16-129; 15-218; 09-136).
However, if the Commission formally charges the judge with misconduct in a formal written complaint (see Judiciary Law § 44 [providing for service of “a formal written complaint signed and verified by the administrator”]), the judge must disqualify him/herself when the individual who initiated the complaint process appears in the judge’s court (see Opinions 16-129; 14-121 fn 2; 13-75; 09-191; 02-96; 97-102). This remains true even if the Commission thereafter permits the judge to waive a hearing and makes its determination on a stipulated statement of facts (see Opinion 16-129 fn 3; Judiciary Law § 44). It is the formal written complaint under Judiciary Law § 44, not the hearing, that triggers the obligation (see Opinion 16-129 fn 1).
In Opinion 02-96, the initial complaint was filed by the District Attorney. In that instance, once the Commission on Judicial Conduct charged the judge with misconduct in a formal written complaint, the Committee advised the judge to “exercise recusal in cases involving the District Attorney’s office” (Opinion 02-96). Here, too, disqualification is required in all matters involving the District Attorney’s office, whether or not the District Attorney or an assistant district attorney personally appears in court. This includes mail pleas and negotiated resolutions where the assistant district attorney merely endorses the recommendation by signing a form. The obligation lasts, at a minimum, throughout the period that the disciplinary proceeding remains unresolved (see Opinion 97-102).
The judge may, however, preside in criminal matters where the District Attorney has lawfully delegated authority to a private attorney, town attorney, town prosecutor, law enforcement officer, or any other person who is not directly employed in the District Attorney’s office.1
A judge who has been publicly disciplined as a result of complaints made by multiple attorneys from the local prosecutor’s office and the local public defender’s office is disqualified from presiding in matters in which attorneys from these offices appear for two years from the date of the published disciplinary decision (see Opinion 15-37). Here, of course, it is not yet known whether this judge will be disciplined at all, and if so, whether the discipline will be public or private. Accordingly, the judge may seek further guidance from the Committee once the disciplinary proceeding is resolved (cf. Opinion 97-102 [“Whether and for how long there must be a continuation of recusal following an ultimate disposition of the matter may depend upon a number of factors which are not presently before the Committee and which at this point remain entirely speculative”]). In any such follow-up inquiry, the judge may, if desired, include information concerning how the matter was resolved with the Commission, the District Attorney’s willingness or unwillingness to take reasonable steps to avoid undue disruption to the judge’s court, whether any assistant district attorneys had any involvement in the disciplinary proceeding or its resolution, and any other factors the judge wishes the Committee to consider.
1 “[I]f a judge determines that the district attorney’s implicit or explicit delegation of authority to prosecute a particular matter is not lawful, then the judge should decline to preside over such matters. But, if a judge concludes that such delegation is lawful, then the judge may preside over such matters” (Opinion 10-170/11-03 [citations omitted]).