Opinion 15-119

June 11, 2015


Digest:         Where a county court judge is aware a town justice presided over an arraignment and then requested the matter be transferred due to a purported conflict, but lacks relevant details of the purported conflict, the judge need not take any further action.


Rules:          22 NYCRR 100.2(A); 100.3(D)(1); Opinions 14-84; 14-50; 14-36; 13-146; 13-71; 12-72; 10-86; 10-64.


         A county court judge who received a request to transfer a criminal matter to another local court post-arraignment asks whether he/she must report the arraigning justice to the Commission on Judicial Conduct. After the arraignment, both local justices requested the transfer because the alleged victim was related to a member of the local government who participates in setting the justices’ salary and the court’s budget. The inquiring judge states that the “conflict was apparently recognized before arraignment, but the defendant was arraigned on the pending charges” and released on recognizance. There is no indication in the inquiry or the attached court file of the degree of relationship between the alleged victim and the town board member.1

         A judge 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][1]).

         As the Committee has previously advised (Opinion 13-146 [citations omitted]):


A judge is not required to conduct an investigation of the alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If the judge concludes that either of these two elements is missing, the judge need not take any action. If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority. By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.

         However, there have been instances where the facts described in an inquiry to this Committee make clear the inquiring judge lacks sufficient information to meet the initial “substantial likelihood” threshold (see e.g. Opinions 14-50 [judge “does not have information indicating a substantial likelihood of any wrongdoing by the named individuals”]; 10-86 [judge who believes charges in criminal complaint against lawyer would, if proven, constitute a substantial violation is not required to take any disciplinary action unless he/she also concludes there is a substantial likelihood that charges are true]; 10-64 [judge “does not know the substance of the alleged false statements or that the attorney’s allegation is true”]). Similarly, where an inquiring judge became aware that another judge presided in a case involving his/her own personal attorney, the Committee noted that “it is not necessarily improper for the judge to preside over matters in which the attorney appears, because the parties and their attorneys may remit the disqualification pursuant to Section 100.3(F)” (Opinion 13-71). The Committee therefore advised that, if the inquiring judge does not know whether there was remittal of disqualification, the judge “need not take any further action, as you do not have information that raises a substantial likelihood that any misconduct occurred” (id.).

         The Committee has advised that a part-time judge is disqualified, subject to remittal, in an arraignment at which a local board member who participates in setting the judge’s salary appears as the prosecution's sole representative (see Opinion 14-36); in cases where such individual appears “as a private litigant or as counsel for a party” or “as prosecutor or witness” (Opinion 12-72); and even in cases where “the named complainant in a criminal matter” is a store owned by such individual (Opinion 14-84). However, this obligation does not automatically extend to all relatives of a town or village board member who participates in setting the judge's salary. Rather, disqualification is required when a “close relative” (such as a sibling, child or spouse) appears as a party (see Opinion 12-72), or when the local board member’s spouse appears as a witness (see id. [distinguishing between a spouse and other relatives]). Thus, for example, a part-time judge need not disqualify him/herself where the emancipated adult child of a board member who participates in setting the judge’s salary appears as a witness (see id.).

         Here, as the inquiring judge has no information concerning the degree of relationship between the alleged victim/complainant and the town board member, no personal knowledge of the arraignment, and no duty to investigate, the Committee concludes that the inquiring judge need not take any further action, as he/she does not presently have information raising a substantial likelihood any misconduct occurred (see 22 NYCRR 100.3[D][1]).


            1 For example, there is no indication of whether the alleged victim was the spouse of the local board member, or within the second degree of relationship (child, parent, sibling, grandchild, or grandparent), as opposed to a more distant relative such as an aunt, uncle, cousin, second cousin, etc.