Opinion 18-49

March 29, 2018

Digest:         Whether a judge is authorized to act on certain declarations of delinquency from the probation department raises primarily legal questions beyond the Committee’s jurisdiction. However, a judge who makes a good-faith legal determination concerning his/her legal authority to act on these submissions necessarily acts ethically, even if the decision is reversed on appeal.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 101.1; Opinions 18-57/17-166; 10-170/11-03; 09-137.

Opinion:

         A judge asks if he/she may “act upon declarations of delinquency submitted directly to the Court by a probation department without the involvement or knowledge of the District Attorney.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law (see 22 NYCRR 100.2[A]), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see id.). Also, a judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]).

         In Opinion 10-170/11-03, a judge asked if he/she could permit a lay complainant to prosecute an alleged criminal violation. We advised that the matter presented a legal issue beyond our authority to address (see id.).

         Here, too, the inquiry presents primarily legal questions. For example, we cannot advise whether the probation department is legally serving as a prosecutor pursuant to an effective delegation of prosecutorial authority; whether the district attorney’s involvement, knowledge and/or consent is legally required; or whether legal authority authorizes the described procedure (see generally Judiciary Law §212[2][l]; Opinions 10-170/11-03; 09-137; 22 NYCRR 101.1).¹

         Of course, a judge who makes a good-faith legal determination concerning his/her legal authority to act on such probation department submissions necessarily acts ethically, even if an appellate court later concludes the judge’s determination was erroneous (see Opinion 09-137).

         We note that Opinion 17-166, referred to in the original inquiry, has been rescinded and replaced with Opinion 18-57/17-166.

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¹ After issuance of this opinion, we were advised that Darvin v Jacobs, 69 NY2d 954 (1987), may resolve or address these legal issues.