Opinion: 97-102

September 11, 1997

Digest:  (1) A judge need not offer recusal solely because the District Attorney has made a complaint to the State Commission on Judicial Conduct about the judge, if the judge believes he/she can be impartial, and the Commission has yet to charge the judge with misconduct in a formal written complaint. (2) Recusal is required when the Commission issues a formal written complaint and directs that a hearing be held, pursuant to Judiciary Law §44(4). (3) Unless otherwise prohibited by law or court rule, the judge may use the court's clerical and other resources to assist in responding to the District Attorney's complaint, provided the complaint involves allegations concerning the performance of the judge's official duties.

Rule:  Judiciary Law §§ 44(1),(3),(4),(7); 45;
           22 NYCRR 100.2.
           Opinions 94-94 (Vol. XII);
           94-46 (Vol. XII); 89-154 (Vol. V).


            The inquiring judge advises that the District Attorney has filed a complaint against him/her with the State Commission on Judicial Conduct ("Commission"), and asks whether recusal is necessary in all cases brought by the prosecutor's office. The judge also asks if it is permissible to acquire free copies of transcripts of criminal proceedings over which the judge presided, which are the subject of the District Attorney's claims. Further, it is asked whether the judge may use chambers staff and office equipment, including photocopying, to assist in responding to the District Attorney's complaint.

            Regarding disqualification, the judge believes that he/she can be completely fair and impartial in deciding cases involving the District Attorney and his assistants. However, inasmuch as the judge is the sole judge presiding in the county-wide court vested with criminal jurisdiction, and the complainant is the District Attorney, the judge acknowledges that contact with the complainant and his assistants will be frequent.

            Initially, it must be noted that all proceedings before the Commission are confidential and remain confidential unless and until the Commission renders a determination to admonish, censure, or remove a judge. Jud. Law §§44(7), 45. In addition, subsequent to the receipt of a complaint, the Commission may conclude that the complaint is prima facie deficient or, after conducting its own investigation, determine that the complaint is meritless. In either instance, the complaint would be dismissed. Jud. Law §44(1).

            This Committee has previously concluded that the mere fact of a complaint having been made to the Commission by an attorney does not, in and of itself, suffice to require recusal. Opinions 94-94 (Vol. XII), 94-46 (Vol. XII). However, the presumptive right and duty of an impartial judge to preside must be balanced against the interests of the parties and the perception of the public.

            In pursuit of such balance, it is the opinion of the Committee that a judge who believes himself or herself to be impartial may preside in criminal cases being handled by the District Attorney's office unless and until the Commission, following its investigation, serves a formal written complaint and directs that a hearing be held, pursuant to Judiciary Law §44(4). At that point, a judge should recuse himself or herself so as to avoid even "the appearance of impropriety [and thereby] promote public confidence in the integrity and impartiality of the judiciary" 22 NYCRR 100.2. Inasmuch as the confidence of the interested public is of the highest importance, the consent of the parties to the judge's continued participation is immaterial.

            But, at this point, it does not appear that the Commission has issued formal charges or, for that matter, has even required that the judge make an investigative appearance pursuant to Judiciary Law §44(3). Thus, all that this opinion stands for is the proposition that the making of a complaint to the Commission by a District Attorney does not by itself mandate recusal, but the filing of a formal, written complaint by the Commission does require recusal.

            Should there be a formal proceeding, the recusal must last at least as long as the proceeding remains unresolved. 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. See e.g., Opinion 89-154 (Vol. V).

            Regarding the use of court staff and resources to assist the judge in responding to the District Attorney's allegations, it is the opinion of the Committee that, if such activity is permitted by law or court rules, it would not be a violation of the Rules Governing Judicial Conduct for the judge to use court staff and resources, if the complaint concerns the performance by the judge of official duties. The Committee is not taking a position as to whether the use of court staff and/or court resources for this purpose is a violation of law or other Unified Court System rules or policy. Finally, the question of an entitlement by the judge to free transcripts of cases cited in the District Attorney's complaint does not present an issue of judicial ethics.