Opinion 20-161

October 29, 2020

Digest:         Upon a judicial association’s filing of a disciplinary complaint against a District Attorney, its member and officer judges are not disqualified from matters in which the District Attorney appears.

Rules:          Judiciary Law § 14; 22 NYCRR 100.1; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 20-151; 08-76/08-84/08-88/08-89; 07-190; 07-176; 07-84/07-140; 07-25; 01-24; 94-23; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A county magistrates association, whose paid membership includes approximately half the town, village, and city judges in the county, is considering filing a disciplinary complaint against the county’s District Attorney. The association’s purposes include preserving the independence of the judiciary from the other branches of government, instructing and assisting its members on the laws and procedures governing their respective offices, improving public understanding of the judiciary by conducting their courts properly with dignity and decorum, and improving public relations. According to the association, its members’ ability to achieve these purposes is directly challenged by the District Attorney’s plea-bargaining policy. The inquiring judge, an officer of the association, asks whether, upon the filing of such a complaint, its members must exercise recusal when the county’s District Attorney or assistant district attorneys appear before their respective courts.

         A judge must uphold and promote public confidence in the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]). Judges must therefore disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         We recently issued an opinion concerning disqualification when an individual judge files a disciplinary complaint against a District Attorney based on a prosecutorial policy that affects all local courts in the county (see Opinion 20-151). We said that the reporting judge would be disqualified while the disciplinary proceeding was pending, and for two years after it was resolved, in any case where the District Attorney personally appeared. Remittal would be unavailable during the two-year period unless the grievance committee imposed public discipline or the District Attorney waived confidentiality (see id.). Conversely, as to the assistant district attorneys of the same office, we said the judge could preside over cases where they appeared even though the District Attorney was counsel of record, provided the judge was satisfied that the assistant district attorney did not set the policy and that he/she could be fair and impartial (see id.).

         Here, as the proposed complainant is not an individual judge but rather a duly constituted association of judges, we conclude a judge’s impartiality cannot “reasonably be questioned” in matters involving the District Attorney merely because he/she is a member or officer of a judicial association that filed a complaint against the District Attorney (22 NYCRR 100.3[E][1] [emphasis added]). Nor does the inquiry reveal any basis for mandatory disqualification (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Accordingly, we conclude disqualification is not required when the District Attorney or an assistant district attorney appears, merely because a judge is a member or officer of the association (see Opinions 08-76/08-84/08-88/08-89; 07-190; 07-176; 07-84/07-140; 07-25; 01-24; 94-23). We emphasize there is also no disqualification obligation even for a judge who signs the association’s complaint as an officer of the association. Because disqualification is not mandated here, each judge remains “the sole arbiter of recusal,” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).