Opinion 06-12

March 9, 2006

Digest:         A judge is not required to disqualify him/herself in matters involving the district attorney, where the district attorney is the judge’s opponent in a judicial election and has threatened to file an ethics complaint against the judge, provided the judge believes he/she can remain impartial under these circumstances.

Rules:          22 NYCRR 101.1; 100.3(E)(1)(a); Joint Opinion 00-80 and 00-78 (Vol. XIX); Opinions 98-71 (Vol. XVII); 97-102 (Vol. XVI); 93-73 (Vol. XI); 92-82 (Vol. IX); 92-57 (Vol. IX); 90-136 (Vol. VI).

Opinion:

         The inquiring judge and the county’s district attorney are opponents in a judicial election. The judge believes that the district attorney plans to file an ethics complaint against him/her, for reasons not stated in the inquiry. The judge asks if he/she is required to request that a special prosecutor handle criminal proceedings currently pending or impending before the judge’s court and, if not, whether the judge has a duty to disclose and recuse, in light of the district attorney’s stated intent to file an ethics complaint against the judge.

         This Committee is authorized to issue opinions to judges “...related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties.” 22 NYCRR 101.1. The inquiry regarding the appointment of a special prosecutor is instead a legal question, or perhaps one that lies entirely within the discretion of the judge. We therefore express no opinion about this issue, which falls outside of this Committee’s jurisdiction.

         Regarding the district attorney as a political opponent of the judge, this Committee has previously determined that whether an incumbent judge seeking elective judicial office should exercise recusal in proceedings involving his/her political opponent is a discretionary decision within the conscience of the judge. See Joint Opinion 00-78 and 00-80 (Vol. XIX); Opinions 92-82 (Vol. IX); 92-57 (Vol. IX). Similarly, this Committee has stated that a judge need not recuse him/herself when the district attorney has filed a complaint against the judge with the Commission on Judicial Conduct, provided the Commission has not instituted formal charges. Opinions 98-71 (Vol. XVII); 97-102 (Vol. XVI).

         In the instant matter, this Committee recognizes that the district attorney is both the ethics complainant and the political opponent of the judge. In our view, these circumstances, whether taken individually or cumulatively, do not require the judge to disqualify him/herself in matters involving the district attorney. Should the judge conclude, however, that he/she cannot remain impartial, the judge should exercise recusal. 22 NYCRR 100.3(E)(1)(a); Opinions 93-73 (Vol. XI); 90-136 (Vol. VI).