Opinion 17-133 Amended
September 7, 2017
Digest: (1) Where a judge is currently facing criminal charges in a neighboring
county, arising from accusatory instruments issued by the specialized
department or agency that oversees a comprehensive regulatory
scheme, the judge may resume or continue to perform his/her judicial
duties, except that he/she must not preside in cases involving
(a) the department or agency that issued the accusatory instruments,
(b) other alleged violations of the same comprehensive regulatory scheme, or
(c) the District Attorney’s office that is prosecuting him/her.
(2) The judge may not undertake to serve as his/her co-judge’s assistant or subordinate during the pendency of the criminal charges by making non-binding recommendations on traffic tickets subject to his/her co-judge’s review and approval.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 17-58; 14-141; 11-95; 08-171/08-174; People v Moreno, 70 NY2d 403 (1987).
The inquiring part-time judge faces certain criminal charges in a neighboring county arising from tickets issued by the department or agency that oversees a comprehensive regulatory scheme. The District Attorney’s office of that county is prosecuting the charges, which range from a misdemeanor to a non-violent class E felony.1 Upon learning of the charges, the judge voluntarily made arrangements for his/her co-judge to assume all judicial duties in the court until the charges were resolved. After further consideration, however, the judge does not wish to continue imposing this burden on his/her co-judge, unless it is ethically required. The judge therefore asks if he/she may (1) resume his/her judicial duties, even though the pending charges have not yet been resolved and/or (2) “assist” his/her co-judge by “assessing the fines and surcharge for traffic tickets,” while permitting his/her co-judge to retain decisional authority by “look[ing] over each ticket and initial[ing] if in agreement with assessment.”
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]). In particular, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). For example, a judge is disqualified if he/she knows that he/she has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][c]; 100.3[E][d][iii]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
In Opinion 14-141, a judge facing criminal charges involving domestic violence allegations asked whether he/she could continue to preside over domestic violence cases if he/she plead guilty to a violation as part of a plea agreement or accepted a conditional discharge in order to dispose of the criminal charges. We analyzed the judge’s obligations in domestic violence cases both during and after resolution of the charges, finding that the obligation varied depending on how the charges were ultimately resolved (id. [citations and footnote omitted]):
The Committee has previously advised “there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge.” Thus, a judge, previously charged with speeding and driving while intoxicated and acquitted after trial, is not precluded from presiding over cases involving individuals charged with violating the same statutes, assuming the judge concludes he/she can be fair and impartial.
Here, however, the inquiring judge has not been acquitted; to the contrary, the criminal charges are still pending against the judge. The Committee does not question the sincerity of the judge’s belief that he/she could, in fact, be impartial in other cases involving allegations of domestic violence. Nonetheless, while those charges remain pending against the judge, the public is likely to perceive the judge as similarly situated to other defendants in domestic violence cases and may reasonably question the judge’s ability to be impartial in such matters. The Committee therefore concludes that, during the pendency of the criminal case, the inquiring judge should not preside over any domestic violence cases.
If the criminal charges are dismissed or withdrawn without conditions, or if the judge is acquitted, the judge may thereafter preside over other domestic violence cases unless he/she questions his/her ability to be impartial in such matters, a matter left to the judge’s sole discretion.
If the judge is convicted, or pleads guilty, he/she should not preside over any domestic violence cases until after the judge has completed any sentence, including a conditional discharge or probation, that may be imposed. Thereafter, the judge may preside over domestic violence cases unless he/she questions his/her ability to be impartial in such cases, a matter left to the judge’s sole discretion.
The same principles apply here; accordingly, the judge must not preside in any other cases involving alleged violations of the same comprehensive regulatory scheme2 while his/her own charges are pending (see id.).
We also address an issue that did not arise on considering the narrow question presented in Opinion 14-141, namely, the judge’s obligation in cases where the prosecutor’s office appears. Here, we conclude that while the judge’s criminal charges are pending, the judge may not preside over other cases involving the same district attorney’s office that is prosecuting him/her, as his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]; cf. Opinion 08-171/08-174).3 While it seems unlikely that assistant district attorneys from a neighboring county will appear before this judge, the Committee notes the general rule for future reference.
In sum, provided that the judge can be fair and impartial, he/she may resume or continue to perform his/her judicial duties and handle small claims matters, traffic tickets or other cases unrelated to the department or agency that issued the tickets, the comprehensive regulatory scheme it oversees, or the District Attorney’s office that is currently prosecuting the judge.
The alternative solution the judge proposes, “assisting” his/her co-judge by making non-binding recommendations on traffic tickets subject to his/her co-judge’s review and approval, is impermissible because the judge would “simultaneously be his/her co-judge’s peer and subordinate” (Opinion 17-58).
1 The charges are regulatory crimes, in that they do not involve alleged violations of the Penal Law, nor do they appear connected to the judge’s judicial duties or his/her honesty or trustworthiness. However, they may involve allegations that the judge intentionally, knowingly, recklessly, or with criminal negligence, violated certain laws or regulations under the agency’s purview.
2 For example, the judge may not preside in cases involving the department or agency that issued the tickets or other alleged violations of the same comprehensive regulatory scheme.
3 The judge may contact us for further guidance on his/her obligations with respect to the District Attorney’s office once the criminal charges are completely resolved, i.e. “after there is a final judgment of acquittal or dismissal or, if there is a guilty plea or other finding of guilt, after the judge has fulfilled any sentence imposed and appeals, if any, have been concluded” (Opinion 11-95 [requiring disclosure for two years, for prosecutors who were personally involved in the judge’s child’s criminal case]). We note that the prosecution here is apparently in its very earliest stages, and the judge’s obligations at the end may be complicated by the presence of a co-defendant or other factors that may arise over the course of the proceedings.