September 4, 2014
Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][e][i]; 100.3[F]).
Digest: A judge who, in the course of presiding over a criminal case, learns that the judge who arraigned the defendant and signed a securing order had also signed the underlying criminal complaint, must report the arraigning judge to the Commission on Judicial Conduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); 100.3(E)(1)(b)(iii); 100.3(F); Opinions 14-36; 13-146; 13-64; 12-166; 12-25; 11-43; 11-08; 10-181; 10-175; 10-14; 09-190; 09-113; 08-146; 08-71; 94-12 (Vol. XII); Joint Opinions 13-124/13-125/13-128/13-129; 05-105/05-108/05-109; Doyle v State Commn. on Jud. Conduct, 23 NY3d 656 (2014); Hurrell-Harring v State, 15 NY3d 8 (2010).
A judge who is presiding over a criminal case post-arraignment has learned that the judge who conducted the arraignment and signed the securing order had previously signed the underlying criminal complaint in connection with his/her extra-judicial employment. The inquiring judge states the arraigning judge “noted in the file that [he/she] would have to recuse [him/her]self from further handling of this matter.” Under these circumstances, the inquiring judge asks whether he/she must report the arraigning judge to the Commission on Judicial Conduct.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D]).
The Committee has generally advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules (see Opinions 12-166; 09-190; 08-146). In the Committee’s view, the judge who has observed or who, based on reliable information, learns about another judge’s conduct, is ordinarily in the best position to determine whether such conduct constitutes a “substantial violation” of the Rules (see Opinions 10-181; 09-190 [setting forth several factors to consider in determining whether another judge’s conduct constitutes a substantial violation]). If a judge concludes there is a “substantial likelihood that another judge has committed a substantial violation” of the Rules, the judge “shall take appropriate action” (22 NYCRR 100.3[D]). There is a wide range of “appropriate actions” depending on the circumstances, and it is, therefore, ordinarily left to the judge’s discretion to determine what action will be appropriate (see Opinion 09-190 [judge must take “whatever action he/she deems appropriate under the circumstances”]). However, if the judge concludes the misconduct calls into question another judge’s fitness to continue in office, then “the only appropriate action” is to report the other judge to the Commission on Judicial Conduct (see Opinions 11-08; 09-113).
As the Committee has previously noted, it “‘cannot judge the credibility of’ allegations of misconduct ‘and is not empowered to do so’” (Opinion 13-146, quoting Joint Opinion 05-105/05-108/05-109). There have nonetheless been several instances where conduct described in an inquiry to this Committee, if true, clearly called into question another judge’s fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission (see e.g. Opinions 13-146 [judge undertook legal work in connection with a matter that originated in the judge’s court, and over which the judge previously presided at the arraignment stage]; 10-181 [after arraigning defendant and setting bail, judge personally posted bail using check drawn on judge’s spouse’s bank account, signed his/her spouse’s name to secure defendant’s release, and then drove defendant home]; 10-14 [judge offered to have a police officer destroy a traffic ticket the officer issued to the inquirer’s relative]).
The Committee believes the conduct described in the present inquiry, if true, unambiguously satisfies the standard of “substantial likelihood” of a “substantial violation,” as the inquiring judge appears to have reliable information that another judge has engaged in conduct that is clearly prohibited under the Rules and prior opinions. Specifically, the arraigning judge allegedly presided over the arraignment of a defendant on criminal charges when the judge him/herself had previously signed the criminal complaint. By signing the criminal complaint against the defendant, the judge at the very least created an appearance that he/she was “a material witness concerning” the case (22 NYCRR 100.3[E][b][iii]). Not only is disqualification mandated under section 100.3(E)(1)(b)(iii), it is also one of four scenarios in which Rule 100.3(F) forbids remittal of disqualification (see Opinion 13-64; 22 NYCRR 100.3[F]).
The fact that the stage of the proceeding at which the judge allegedly failed to disqualify him/herself was an arraignment does not alter the analysis. The Committee has advised in general, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25; see also Opinions 11-43; 08-71; 94-12 [Vol. XII]).1 Thus, the Committee has advised that even if a town or village justice deems the arraignment process to be routine or ministerial, he/she may not preside during an arraignment at which a town or village board member, who participates in setting the judge’s salary, appears as the prosecution’s sole representative (see Opinion 14-36). Nor may a judge who presides over “only” the arraignment stage of a case subsequently serve as a lawyer in the proceeding (see Opinion 13-146 [judge must report such conduct on the part of his/her co-judge to the Commission on Judicial Conduct]).
Indeed, if the inquiring judge has correctly understood and described the arraigning judge’s note in the case file, it appears the arraigning judge actually recognized the existence of the conflict, but nonetheless decided to preside over the arraignment of a defendant on criminal charges for which the judge him/herself signed a criminal complaint before disqualifying him/herself. This conduct is likely to undermine public confidence in the judiciary, by creating an appearance that the arraigning judge does not fully appreciate the constitutional dimensions of his/her judicial responsibilities in criminal matters. As the Committee noted in Joint Opinion 13-124/13-125/13-128/13-129 at n 6:
The Court of Appeals has stated that arraignment is a “critical stage” of criminal proceedings which may implicate a defendant’s “pretrial liberty” interests, “ability to defend against the charges,” and may also have “serious consequences, both direct and collateral” (Hurrell-Harring v State, 15 NY3d 8, 20 ).
Accordingly, the conduct described calls into question the arraigning judge’s fitness to continue in judicial office, thus imposing upon the inquiring judge an affirmative duty to report the arraigning judge to the Commission on Judicial Conduct (see e.g. Opinions 13-146; 10-181; 10-175; 10-14).
1 As the Court of Appeals has observed, “the clear thrust of the judicial ethics opinions since at least 1994” is that, where recusal is mandated, the obligation applies equally in “‘routine, non-contested or administrative’ matters” (Doyle v State Comm'n on Judicial Conduct, 23 NY3d 656, 660  [“It is only by an overly restrictive interpretation of her ethical obligations that petitioner reached a different conclusion”]).