Opinion 20-22

April 30, 2020

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:         Where a disciplinary proceeding resulting solely from a complaint filed by the District Attorney results in public censure on undisputed facts, the judge must continue to disqualify him/herself from all matters involving the District Attorney’s office for two years. During this period, the judge’s disqualification is subject to remittal in matters where defendants are represented by counsel, provided the judge (a) concludes he/she can be fair and impartial and (b) strictly complies with all requirements for remittal.

Rules:          Judiciary Law §§ 14; 44(4); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(e)(I); 100.3(F); Opinions 19-89; 18-85; 17-160; 17-143; 16-163/16-170; 16-141; 16-67; 16-129; 15-37; 14-78; 13-64; 02-96; 98-71; 97-102; 90-66; 89-154.

Opinion:

         The inquiring judge was involved in a disciplinary proceeding before the Commission on Judicial Conduct, as a result of a complaint filed by the District Attorney concerning the judge’s actions in an underlying criminal case. The matter has resulted in public censure based on undisputed facts, without the need for testimony. The judge is confident he/she can be fair and impartial in criminal matters, and believes the disciplinary complaint does not reflect any personal rancor or hostility on the part of the District Attorney or any assistant district attorneys.¹ The judge now asks if he/she must continue to disqualify him/herself from criminal cases involving the DA’s office, and if so, for how long.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

         As we advised in Opinion 16-129 (citations, footnotes and brackets omitted), the filing of 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. 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.”

A formal written complaint reflects the Commission’s “determination that a hearing is warranted,” evidencing a degree of seriousness beyond mere judge-shopping concerns. 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.” In other words, once the Commission issues a formal written complaint against a judge based on a litigant’s, attorney’s or witness’s complaint, the judge must disqualify himself/herself involving that complainant.

         Here, the judge has been disqualifying him/herself in all matters involving the District Attorney’s office since the Commission issued a formal written complaint and pursued the disciplinary proceedings (see e.g. Opinion 02-96). Now that the disciplinary matter has been resolved, the question is how long the judge’s disqualification should last, and whether it is subject to remittal.

Some General Principles Underlying Disqualification and Remittal

         Where a judge has a disqualifying conflict, it is not the parties’ burden to request the judge’s disqualification. Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern. Moreover, where remittal is available, it is a multi-step process which likewise puts the burden on the judge (1) to make full disclosure of the basis for disqualification on the record and (2) not to preside unless the parties and their counsel freely and affirmatively consent to waive the conflict as specified in Section 100.3(F) and our prior opinions. Again, mere failure to object is insufficient.²

         That said, except where specifically forbidden, a judge’s disqualification is typically subject to remittal (see e.g. Opinions 18-85; 17-160; 17-143; 16-163/16-170; 14-78; 13-64). As noted in Opinion 13-64 (citations omitted):

Rule 100.3(F) forbids remittal of disqualification in four scenarios. That is, remittal is prohibited if the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding. Because remittal is not available in these circumstances, the judge must disqualify him/herself from the proceeding.

Since then, as of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][I]; 100.3[F]).

         In addition, remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see e.g. Opinion 13-64).³

Post-Resolution Obligations

         We have recognized that a judge’s obligations after resolution of a judicial disciplinary proceeding involve a fact-specific determination based on multiple factors (see Opinions 16-141; 97-102). In Opinion 16-141 (citations omitted), we said the judge:

may seek further guidance from the Committee once the disciplinary proceeding is resolved. In any such follow-up inquiry, the judge may, if desired, include information concerning how the matter was resolved with the Commission, the District Attorney’s willingness or unwillingness to take reasonable steps to avoid undue disruption to the judge’s court, whether any assistant district attorneys had any involvement in the disciplinary proceeding or its resolution, and any other factors the judge wishes the Committee to consider.

         Nonetheless, on further consideration, we believe disqualification for two years is presumptively appropriate after a judge has been publicly disciplined (see Opinions 15-37 [public censure]; 98-71 [public admonishment]; 89-154 [public censure]).

         Here, we see no reason to deviate from this approach. Thus, the sole question presented is whether remittal is available during the two-year period. It is an issue we have only addressed twice before, and both times in extraordinary scenarios involving multiple complaints and extensive testimony against a judge from prosecutors and defense counsel alike.

         In Opinion 89-154, we imposed a two-year disqualification period following imposition of public censure, although we cautioned that the opinion “should not be deemed a precedent for a situation where any of the essential facts differ substantially from those stated.” We described those essential facts as follows:

Several local private attorneys, as well as several attorneys employed in the district attorney’s and public defender’s offices, testified in a proceeding brought by the Commission on Judicial Conduct in which the judge was a respondent, following which the judge was publicly censured by the Commission. The question presented is whether the judge is required to disqualify himself in all actions where the district attorney[,] the public defender, attorneys in their respective offices, the local witness attorneys, or their law firms, appear.

Moreover, as we further observed (id.):

both the district attorney’s office and the public defender’s office in this small county are themselves quite small and ... the scope of involvement of both offices in the events leading up to and including the Commission hearing apparently was high, making the risk of mutual hostility also high, at least in the public perception.

On reconsideration of Opinion 89-154 at the request of an administrative judge, we clarified that remittal was not available in that particular “factual situation that is almost sui generis” (Opinion 90-66).

         In Opinion 15-37, a judge was publicly censured “as a result of complaints made by the local prosecutor’s office and the local public defender’s office.” In a footnote, we observed that the inquiring judge “is not yet confident of his/her own ‘ability to fairly preside’ in” matters involving either office (id. fn 1). We concluded the judge was disqualified from presiding in matters in which attorneys from these offices appear for two years from the date of the published disciplinary decision, without the possibility of remittal (see Opinion 15-37). We explained the rationale for prohibiting remittal as follows (id. [citations omitted]):

the local prosecutor’s office and public defender’s office were likewise sufficiently involved in the disciplinary process that the judge’s impartiality can reasonably be questioned in any case where either office appears. Indeed, it seems inescapable under the circumstances presented here that there will be a public perception of mutual hostility between the judge and the attorneys whose complaints and/or testimony have resulted in a finding of public discipline that may affect the judge’s judicial career. Here, too, the public needs assurance “that proceedings in the court will not be affected by rancor or favor” when attorneys from the prosecutor’s or defender’s office appear.

         Here, unlike these prior public censures, there was only one complaint filed and no testimony was taken, as the matter was resolved on undisputed facts. Accordingly, the voluminous letters offered to the Commission in support of this judge from both prosecutors and defense counsel — while not determinative — nonetheless suggest that the extraordinary rancor touching on all criminal cases, as seen in Opinions 15-37 and Opinion 89-154, is unlikely to be present. Moreover, unlike the inquirer in Opinion 15-37, this judge is confident he/she can be fair and impartial.

         Thus, we believe it is appropriate to follow the principle, set forth above, that remittal is generally permitted where not specifically forbidden. For two years after the date of the public censure, this judge must disqualify him/herself from all cases in which the District Attorney’s office appears. However, provided the judge is confident he/she can be fair and impartial and the defendant is represented by counsel, the judge may offer the parties an opportunity to consider remitting disqualification, should they choose to do so. The judge must ensure that all elements of remittal are satisfied, before taking any judicial action in a case involving the District Attorney’s office. We repeat the basic three-step process as summarized in Opinion 16-163/16-170 (citations omitted):

First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

         We again caution that remittal is not available without affirmative consent from both sides, including the defendant and defense counsel as well as the prosecutor. We also note that institutional defenders cannot provide a “blanket” remittal of disqualification, because remittal is not available in a criminal case without the affirmative consent of each defendant client after full disclosure (see Opinions 19-89; 16-67).

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¹ The inquiry included many letters of support from attorneys, including those involved in the underlying case and the complainant. Most of these letters were addressed to the Commission, but the complainant’s letter was prepared and submitted after the judge was censured. While such letters do not and cannot alter the judge’s underlying ethical obligations, they may be relevant in assessing the degree of personal rancor or hostility between the judge and a particular attorney.

² In some instances, we have mandated disclosure in lieu of outright disqualification. In such instances, provided no party is appearing without counsel, the judge has discretion to preside, following full disclosure on the record, even if a party objects.

³ These requirements are drawn from a close and careful reading of the language of Section 100.3(F). In our view, the section permits recusal only after agreement by “the parties who have appeared and not defaulted and their lawyers” following “disclosure [on the record] of any basis for disqualification” (22 NYCRR 100.3[F] [emphasis added]).