Opinion 19-46

May 2, 2019

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A town justice whose co-judge is unavailable to handle any cases (1) may undertake the strictly ministerial role of depositing and transmitting fine money received in cases previously adjudicated by his/her co-judge in fulfilment of statutory and regulatory directives but (2) must otherwise check for conflicts in any further proceedings involving the co-judge’s former caseload and disqualify him/herself when necessary.

Rules:          State Finance Law § 99-a; Town Law § 27(1); Uniform Justice Court Act § 2021(1); 22 NYCRR 214.9(a); 100.2; 100.2(A); 100.3(B)(1); Opinions 18-57/17-166; 16-55; 14-150; 1982 Ops St Comp No. 82-75; 2019 Ann Rep of NY Commn on Jud Conduct at 161.

Opinion:

         The inquiring town justice presides in a two-judge court, but his/her co-judge cannot handle any cases for the foreseeable future. The justice asks for guidance on handling cases previously adjudicated by the co-judge, for which fine moneys were or will be received. The state comptroller has directed such completed cases be transferred to the inquiring judge for statutorily required deposit and transmission to the state comptroller (see 22 NYCRR 214.9[a]; State Finance Law §§ 99-a; Town Law § 27[1]; Uniform Justice Court Act § 2021[1]). However, many of these completed cases were originally assigned to the co-judge due to conflicts. The inquiring justice says it would be “difficult if not impossible” to comply with the 72-hour deposit rule if he/she had to screen each case for conflicts as fine monies are received.¹

         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 “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]).

1. Acceptance and Transmittal of Funds in Co-Judge’s Previously Adjudicated Cases

         The judge first asks if he/she must screen each previously adjudicated case for conflicts as fine moneys are received, or if “simple receipt and reporting of fines already set by [the] co-judge might be viewed as a purely ministerial act” so that the judge need not disclose or disqualify him/herself from such matters.

 A judge who decides legal questions in good faith based on apparently controlling statutes, codes, rules and regulations is necessarily acting ethically (see Opinions 18-57/17-166; 16-55). A judge may be asked to perform a ministerial, rather than a judicial function. This is so if his/her role is purely formal, so the judge lacks any real discretion to perform it, or if it has no substantial legal effect (see Opinion 14-150 [judge may sign attorney’s proposed order, without amendment, if it “is perfectly identical to” the judge’s oral order issued before the basis for recusal arose with no legal issues to consider or resolve]).

         The protocol for depositing fines and making monthly reports to the state comptroller, as the judge describes, appears to be ministerial based on prior opinions.

         Accordingly, the judge need not assess for possible conflicts those cases previously adjudicated by the co-judge for which identified fine money has or will be received, where the judge will undertake the strictly ministerial role of depositing and transmitting the money in compliance with statutes, regulations, and directives.

2. Further Adjudication, Such as License Suspensions, Bench Warrants, or Resentencing Hearings, in Co-Judge’s Previously Adjudicated Cases

         The judge also asks if he/she may likewise participate when additional issues arise relating to his/her co-judge’s prior determinations, such as issuing license suspensions or bench warrants for failure to appear following nonpayment, or conducting resentencing hearings as needed.

         As such proceedings are clearly not ministerial, but involve judicial discretion, the judge must exercise due diligence to determine if he/she has a conflict of interest before participating. If the judge knows or is advised that a conflict exists, the judge must take whatever steps are required under the circumstances.²

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¹ As the state comptroller has observed, “[i]n the transition from one judge to another there is often money which can not be connected to any matter currently pending before the court. This is called ‘unidentified money’” (Handbook for Town and Village Justices, at 52; 1982 Ops St Comp No. 82-75 [“moneys which can not be identified with a particular person or charge”]). Such unidentified moneys in a town or village justice’s bank account must be handled in particular ways (see Handbook, supra, at 17, 52, 132-134; 1982 Ops St Comp No. 82-75; 2019 Ann Rep of NY Commn on Jud Conduct at 161). The inquiring justice is not accepting, and does not plan to accept, any unidentified moneys associated with his/her co-judge. We concur with this approach and advise him/her to accept only identified funds on a case-by-case basis, absent a legal obligation to proceed otherwise.

² For example, if the conflict is one that requires disqualification, the judge must disqualify him/herself. In appropriate circumstances, the disqualification may be subject to remittal after full disclosure on the record, provided that no party is proceeding without counsel.