Opinion 24-174

October 30, 2024

Digest:  While a judge has a pending harassment violation after “shak[ing] hands” with a local police chief, the judge (1) must disqualify in all cases where the police chief personally appears or is the issuing or arresting officer; but
(2) may otherwise preside in criminal cases, including matters involving only the police chief’s subordinates.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 17-133; 16-175; 14-141; 02-54; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring judge was recently given an appearance ticket and charged with “harassment, a violation” after the judge and a police chief “shook hands” at a public meeting.  As described by the judge, the “allegation is that when I ended the handshake, I pulled [the police chief] toward me, causing [his/her] shin to come into contact with a chair that was between us.”  The judge promptly recused from the harassment case, which was filed in the judge’s court, but asks if it is ethically permissible to preside in other criminal matters initiated by that police department.  If not, the judge asks several detailed questions pertaining to the judge’s ability to handle his/her remaining caseload.  In any event, the judge emphasizes that he/she “can be impartial in handling any matters that come before” him/her, “notwithstanding the pendency” of the harassment charge.

A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  Thus, a judge must disqualify in any proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or law (see generally id.; Judiciary Law § 14).  For example, a judge is disqualified if he/she knows that he/she has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).  Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

          On two prior occasions, we have considered a judge’s ethical obligations while he/she is the subject of pending criminal charges.  In the first instance, where the judge was “currently a defendant in a criminal case involving domestic violence charges,” we said the judge “should not preside over other domestic violence cases during the pendency of his/her own case and, if convicted, during the term of any sentence that may be imposed” (Opinion 14-141).  In the second, where the judge was being prosecuted by the District Attorney of a neighboring county for “a non-violent class E felony” and certain lesser charges arising from accusatory instruments issued by an agency that oversees a comprehensive regulatory scheme, we concluded the judge must not preside in matters involving the prosecutor’s office, the issuing agency, or “other alleged violations of the same comprehensive regulatory scheme” (Opinion 17-133).  Thus, under the circumstances presented, we recognized a need for a relatively broad disqualification while the charges were pending, notwithstanding that “there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge” (Opinion 02-54). 

          Still, the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR part 100, Preamble).  In our view a different approach is appropriate where, as described in the present inquiry, a charge of harassment apparently hinges solely on an allegation that the inquiring judge shook hands “with intent to harass, annoy or alarm” the police chief (Penal Law § 240.26[1]). 

          We conclude the judge here must disqualify in all cases where the police chief personally appears.  This includes any Vehicle and Traffic Law matters where the police chief is the issuing officer of a uniform traffic ticket, even if the motorist wishes to plead guilty by mail (cf. Opinion 16-175 [“While a judge need not separately scrutinize all pleadings to determine whether his/her client is the issuing officer, the judge must not take a guilty plea, either by mail or in person, if the client’s role as issuing officer is readily available, such as in those instances where the officer’s name appears on the ticket.”]). 

          Conversely, on these facts as characterized in the inquiry, we conclude the judge’s impartiality cannot be “reasonably questioned” (22 NYCRR 100.3[E][1] [emphasis added]) in all harassment cases or in matters involving only the police chief’s subordinates.  Thus, the judge may preside in criminal cases and Vehicle and Traffic Law matters where the police chief’s subordinates are the arresting or issuing officers, provided the police chief does not personally appear.

          In light of this disposition, we do not reach the judge’s remaining questions (see e.g. Opinion 21-169).