Opinion 09-145

September 10, 2009

Note: Please see Opinion 20-20 before relying on this opinion, as it concludes that “impaneling a grand jury and acting as its legal advisor are not merely ministerial acts,” and therefore, “If the judge learns a case pending or being investigated while he/she was District Attorney is before the grand jury, he/she is disqualified over any issues presented in that case.”  

Opinion 20-20 further distinguishes between the filing of an indictment with the court under CPL 190.65(3) (which may be ministerial) and “[r]eceiving grand jury reports under CPL 190.85” (which “involves adjudicative and/or discretionary responsibilities”).

Digest:         A judge’s relationship to an assistant district attorney does not require recusal where the judge’s only functions regarding the grand jury proceedings are ministerial in nature.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinion 99-28 (Vol. XVII).

Opinion:

         A judge’s first cousin’s husband is a senior investigator and assistant district attorney in the county where the judge sits. The judge’s criminal case assignment is limited to impaneling the grand jury, ensuring a quorum is present and that a sufficient number of grand jurors are present to vote on each indictment, and then transferring the matter to the county court. In addition, the judge receives grand jury reports and signs arrest warrants sought pursuant to indictments handed down by the grand jury.

         The judge asks whether he/she must disqualify him/herself when the first cousin’s spouse is involved in a matter pending in his/her court.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must 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]). Therefore, a judge must not allow family relationships to affect his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself whenever his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a county court judge whose spouse is an assistant district attorney who may have been involved in cases presented to the grand jury need not disqualify him/herself when he/she receives a “hand up” from the grand jury as that procedure is “purely formal and the judge’s role perfunctory and ministerial” (Opinion 99-28 [Vol. XVII]). The Committee views the judge’s role as ministerial. Therefore the judge’s impartiality cannot reasonably be questioned when his/her first cousin’s spouse who is a senior investigator and assistant district attorney in the county where the judge sits is involved in a matter that comes before him/her for the limited purpose he/she describes (see 22 NYCRR 100.3[E][1]). Accordingly, the judge need not disqualify him/herself from such matters nor take any other action concerning his/her first cousin’s spouse.