Opinion 16-129

September 8, 2016

Digest:         A judge need not disqualify him/herself in a criminal case merely because the defendant, defense witness(es) and/or other individuals connected with the defense have filed complaints against the judge, provided the Commission on Judicial Conduct has not issued a formal written complaint and the judge can remain fair and impartial.

Rule:            Judiciary Law §§ 14; 44(4)-(5); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 7000.1(g); 7000.1(l); 7000.3(b)-(c); 7000.4; Opinions 16-16; 15-218; 15-37; 14-121; 13-75; 11-64; 09-191; 09-136; 02-96; 97-102; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

A part-time judge asks if he/she may preside over a criminal case, after the defendant and one or more defense witness(es) have filed complaints against the judge. Defense counsel requests the judge’s recusal, largely based on complainants’ fear that the judge will be biased against them.¹ However, the judge is confident he/she can be fair and impartial. While the status of the complaints varies (some are either still pending or were dismissed less than two years ago), the Commission on Judicial Conduct has not issued a formal written complaint regarding these complaints.²

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]). Where, as here, disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated by this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless he/she doubts his/her own impartiality in a specific case (see Opinion 11-64).

         As the Committee has advised, a litigant’s or attorney’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require the judge’s disqualification, provided the judge concludes, in his/her sole discretion, that he/she can be fair and impartial (see e.g. Opinions 15-218; 09-136). Any other rule would allow — and perhaps encourage — individuals involved in litigation to use the disciplinary system, or collateral actions against a judge, as a means to disrupt the court process or “judge shop” (see e.g. Opinions 16-16; 15-218; 14-121).

A formal written complaint reflects the Commission’s “determin[ation] that a hearing is warranted” (Judiciary Law § 44[4]), evidencing a degree of seriousness beyond mere judge-shopping concerns.³ Thus, if a judge believes he/she can be fair and impartial, the trigger for disqualification is the Commission’s issuance of a formal written complaint, i.e. “a writing, signed and verified by the administrator of the commission, containing allegations of judicial misconduct against a judge for determination at a hearing” (22 NYCRR 7000.1[g]). In other words, once the Commission issues a formal written complaint against the judge based on a litigant’s, attorney’s or witness’s complaint, the judge must disqualify him/herself from matters involving that complainant (see Opinions 14-121 fn 2; 13-75; 09-191; 02-96; 97-102).⁴

Here, no matter how many disciplinary complaints have been filed by the defendant, defense witness(es), and/or other individuals connected with the defense, and regardless of how many are dismissed or still pending, the critical question is whether the Commission has issued a formal written complaint. As the Commission has not done so, this judge “is the sole arbiter of recusal” (Moreno, 70 NY2d at 405) and must search his/her own conscience to determine if he/she can preside without any partiality or bias concerning the complainants (see Opinions 15-218; 14-121; 09-136). As this judge already searched his/her conscience and concludes he/she can be fair and impartial, he/she may preside unless the Commission issues a formal written complaint.

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         ¹ For example, defense counsel argues the defendant is reluctant to waive a jury trial, and a witness may be so uncomfortable in testifying before the judge that it could influence the jury’s assessment of his/her testimony.

         ²The Commission may dismiss complaints without ever issuing a formal written complaint. This may be done “[u]pon receipt ... or after an initial review and inquiry” (22 NYCRR 7000.3[b]) or “[d]uring the course of, or after, an investigation” (22 NYCRR 7000.3[c]). Moreover, the Commission may issue a letter of dismissal and caution “in lieu of a formal written complaint” (22 NYCRR 7000.4; 7000.1[l]).

         ³ This remains true, even if the Commission thereafter permits the judge to waive a hearing and makes its determination on an agreed statement of facts (see Judiciary Law § 44[5]). It is the formal written complaint under Judiciary Law § 44, not the hearing, which triggers the obligation.

         ⁴ Where triggered, such disqualification “must last at least as long as the proceeding remains unresolved” (Opinion 97-102). In some circumstances, the disqualification period may be longer (see Opinion 15-37).