Opinion 22-03

January 27, 2022

Digest:         A full-time judge who previously served as a supervising Administrative Law Judge (ALJ) and then as the Chief ALJ with the Board of Parole Revocation Bureau (1) must disqualify from the criminal matters of individuals for whom a revocation proceeding was commenced or pending during the judge’s tenure, but (2) may preside over the criminal matters of defendants for whom a revocation proceeding was commenced after the judge’s tenure, provided the judge can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 19-15; 17-169/17-170; 14-10; 07-30; 97-08.

Opinion:

         The inquiring full-time judge was previously employed with the NYS Board of Parole Revocation Bureau, Department of Corrections and Community Supervision as the Chief Administrative Law Judge (ALJ). As Chief ALJ, the inquirer “established and maintained policies and procedures for processing requests for revocation hearings, reviewed hearing decisions and files, and informed staff of changes in statutes, regulations, policies and court decisions that affected the hearing process.” Prior to that, as a supervising ALJ, the inquirer “scheduled hearing officers for all phases of parole violations hearings, administered state-wide agency training for ALJs and preliminary hearing officers … and reviewed hearing decisions for legal accuracy and compliance with statutory regulations.” The judge now asks if it is ethically permissible to preside over the criminal matters of persons under parole supervision, where there is “a simultaneous allegation of violating the conditions of parole.” We understand that the alleged violations of parole conditions may or may not be related to the pending criminal matter.

           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]). A judge must therefore disqualify in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances as required by rule or law (see generally id.; Judiciary Law § 14), such as when the judge knows they previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]). Disqualification on this specific ground is not subject to remittal (see 22 NYCRR 100.3[F]).

         We have advised that a judge is disqualified in any matter where the judge had “even minimal involvement” as a lawyer (see Opinion 17-169/17-170). Accordingly, a judge cannot preside over any matter in which the judge previously participated in any way, whether in a personal or supervisory capacity (see Opinion 07-30 [judge must disqualify and may not preside over matters in which the judge participated, personally or in a supervisory capacity, while serving as an assistant corporation counsel]). Further, “the scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there” (see Opinion 17-169/17-170). For example, a judge who served as the Public Defender or as the District Attorney, i.e. the head of the agency, must disqualify from all cases that were pending in the office during the judge’s tenure because “as the official in charge under whose name and/or authority proceedings were conducted, the judge is deemed to be directly involved in each matter of the office” (see id.; see also Opinion 14-10 [judge who had been the District Attorney must disqualify from all cases charged or prosecuted during their tenure even if the judge lacked actual knowledge or involvement in a particular matter]). However, a judge who previously served as the Public Defender or District Attorney may preside over newly filed cases in their former office, even those handled by attorneys they previously supervised, provided the new matters have no substantial connection to any case pending during the judge’s tenure at the office and the judge can be fair and impartial (see Opinions 19-15; 17-169/17-170; 14-10).

         As Chief ALJ, the judge apparently had general supervisory authority over decisions issued in all pending parole revocation matters and must thus disqualify from the criminal matters of those persons for whom a parole revocation proceeding was commenced or pending during the judge’s tenure (see Opinion 97-08).

         Accordingly, we conclude the judge must disqualify from the criminal matters of individuals for whom a revocation proceeding was commenced or pending during the judge’s employment with the NYS Board of Parole Revocation Bureau, but the judge may preside over the criminal matters of defendants for whom a revocation proceeding was commenced after the judge’s tenure, provided the judge can be fair and impartial.