Opinion 13-75

July 29, 2013

Dear Justice:

         This responds to your inquiry (13-75) asking whether you must disqualify yourself from presiding in a criminal case because you learned the defendant filed a complaint against you with the Commission on Judicial Conduct. You also ask whether the case should be remitted to the County Court for re-assignment to another court should you disqualify yourself.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1],[1][a][i]).

         A judge ordinarily must disqualify him/herself from a case involving a litigant who has complained about the judge to the Commission on Judicial Conduct once the Commission issues a formal written complaint (see 09-191). However, disqualification is not mandated simply because a litigant has complained about the judge to the Commission unless the judge believes he/she can no longer be impartial (see 22 NYCRR 98-69 [Vol. XVII]). Therefore, you are not required to disqualify yourself from the criminal case pending in your court because the defendant has filed a complaint against you with the Commission, unless you can no longer be fair and impartial.

         If you do disqualify yourself, you should refer the case to your co-judge who then must decide whether he/she will disqualify him/herself for any reason.

         I have enclosed a copy of Opinions 09-191 and 98-69 (Vol. XVII) for your convenience.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.