Opinion 20-82/20-86

June 18, 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:         A judge who is disqualified, subject to remittal, in all cases involving a particular law office may offer the parties and their counsel an opportunity to remit disqualification, but must not actively advocate for remittal. While a judge may expedite the remittal process by using a form that memorializes the basis for disqualification, the form must fully disclose all relevant facts and must permit the parties and their counsel to decide freely without the judge’s participation. Nor may the judge preside in any non-ministerial stage of a case involving that law office, unless the disqualification is properly remitted.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(F); 101.1; Opinions 20-22; 20-20; 19-89; 19-59; 19-46; 16-144; 16-120; 16-67; 16-55; 14-150; 12-25; 09-223; 09-138; 09-61; 99-28.

Opinion:

         The inquiring judge was publicly censured by the Commission on Judicial Conduct based on a complaint filed by the District Attorney. As the judge is currently within the resulting two-year disqualification period for criminal cases involving the DA’s office, the judge asks about the scope of the disqualification and the propriety of certain steps to expedite or streamline the remittal process. Specifically, the judge would like to send a form “remittal agreement” to both sides in each criminal case and a letter inviting the DA to issue a blanket remittal of disqualification on behalf of the entire office and/or to advise the assistant district attorneys of the DA’s position on remittal.¹ Further, the judge, characterizing certain judicial duties as ministerial, asks if he/she is “required to go through the remittal process regardless of what stage the case is at or the nature of the request.”

         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 disqualify in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). A judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding,” unless an exception applies (22 NYCRR 100.3[B][6]).

Expediting or Streamlining Remittal

         The judge proposes to advise both sides that he/she is “disqualified with remittal,” as if remittal is automatic or inherent in the disqualification itself. But the judge is not “disqualified with remittal”; rather, he/she is disqualified subject to remittal – a significant difference. As far as the judge is concerned, he/she is disqualified. Period. It is now up to the parties and their counsel to decide whether to remit that disqualification.

         Remittal, where permitted, is a three-step process: 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 (see Opinion 09-138; 22 NYCRR 100.3[F]). If, however, any party is appearing without counsel, remittal is not available (see Opinion 19-59). Nor may a judge appoint assigned counsel for the sole purpose of facilitating remittal of the judge’s disqualification (see Opinion 19-89).

         Although 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 Opinion 20-22), the same concerns do not arise with a “blanket” remittal offered by the prosecutor. Nevertheless, “remittal is not available without affirmative consent from both sides, including the defendant and defense counsel as well as the prosecutor” (id.). Further, any remittal, blanket or otherwise, must comply with the three-step process. Although the judge has determined he/she can be fair and impartial in matters involving the DA’s office, the proposed form “remittal agreement” and letter run afoul of the other two requirements.

         First, the judge must fully disclose the basis for disqualification. As relevant here, the judge’s conduct resulting in censure involved a matter in which the judge initiated, engaged in, and considered an impermissible ex parte communication with a deputy sheriff concerning a policy and practice of the county jail that pertained to the merits of a pending motion to preclude certain evidence at trial. Further, even after considering the information learned during the ex parte communication in deciding the motion, the judge failed to disclose the communication to the parties. The form “remittal agreement” the judge proposes to use, however, discloses only that on a certain date, he/she was “censured by the Commission on Judicial Conduct in part, for an ex parte telephone call,” and that the DA was the complainant. That terse and conclusory abstract fails even to approach the requisite disclosure of the basis for disqualification, as it fully describes neither the gravamen of the underlying misconduct nor the root of the conflict from which the judge’s impartiality might reasonably be questioned. We note that the judge could satisfy the obligation of full disclosure simply by providing a copy of the Commission’s censure determination. Of course, if the judge is unwilling to make full disclosure, remittal is not permitted (see Opinion 19-89).

         Second, the remittal must occur “without the judge’s participation” (see Opinion 09-138; 22 NYCRR 100.3[F]). In effect, this requirement recognizes the risk of an appearance of undue pressure or coercion if the disqualified judge actively seeks to persuade the parties to remit. A desire to preside cannot justify an undertaking to advocate in favor of remittal. The decision to remit must be made freely, willingly, and without coercion, in full knowledge of the relevant facts. Here, the judge’s proposed letter to the DA affirmatively advocates for remittal, first noting that the DA had written to an administrative judge that the inquirer could be fair and impartial while “express[ing] a desire to resume our working relationship,” and second “suggest[ing] that you make your assistants aware of the remittal procedure and your stated position.”² We believe the judge’s proposed arguments to actively induce remittal fall far short of satisfying the requirement that the parties’ and their counsel’s decision on remittal be reached without the judge’s participation.

         Of course, in a busy criminal court where the same attorneys appear regularly, it could well cause undue delay if the judge were forced orally to disclose the basis of the disqualification in case after case, only after the matter had been called into the record. Accordingly, there is nothing inherently improper in a judge’s attempting to streamline the remittal process.

         However, any system a judge adopts to expedite the remittal process when there are “repeat player” attorneys on both sides “must, at a minimum, involve full disclosure of the basis for disqualification and, especially for the institutional defender, consultation with the client” (Opinion 16-67). To be sure, we have previously advised that a judge may use a form to expedite the disclosure/remittal process, but only where the form meets the requirements of full disclosure of the basis for disqualification, consent by all parties and their attorneys, and incorporation of both disclosure and remittal into the record (see Opinion 19-89 [judge proposed to “memorializ[e] the remittal on court letterhead where both parties can review the disclosures (outside the presence of the judge) and sign the form so that it becomes part of the record as required”]; see also Opinion 16-144 [judge may streamline remittal process by incorporating requisite disclosures and consents into the written agreement to transfer case to veterans court]).

         Unlike in Opinion 19-89, the judge here proposes to do far more than merely memorialize on letterhead the disclosure he/she is obligated to make fully, coupled with signature lines at the bottom available for those who wish to consent to remittal. Rather, the judge seeks to actively solicit remittal, at least from the DA, by means of an ex parte communication assuming consent as a forgone conclusion. That he/she may not do.

Ministeriality

         The inquirer further asks whether he/she may circumvent the remittal process altogether in deciding a request to grant the release of a presentence investigation report to appellate counsel; defer a surcharge for an incarcerated inmate; or adjourn a pending criminal matter; or in other matters “where the decision would be mine alone to make and no party has standing to comment or question my decision.”

         Where a ground for disqualification exists, a judge “ordinarily must not preside, even in ‘matters that appear to be routine, mundane, uncontested or ministerial in nature’” (Opinion 14-150, quoting Opinion 12-25). Accordingly, a judge who must disqualify in certain cases must do so at the outset of the case and may not first conduct an arraignment (see Opinion 09-223; see also Opinions 16-120 [where judge learns of conflict with witness which precludes him/her from presiding in criminal defendant’s Outley hearing, judge is disqualified from remainder of criminal case and may not sentence defendant]; 12-25 [judge who is disqualified from presiding over matters where particular attorney appears may not “so-order” stipulations entered into by that attorney]).

         Applying a “very narrow exception,” we have recognized that “some functions may in fact be truly ‘ministerial, rather than judicial’ in nature, ‘if the judge’s role is purely formal, so that the judge lacks any real discretion in performing it, or if the task or function can properly be delegated to non-judicial personnel, or if it has no substantial legal effect’” (Opinion 14-150, quoting Opinion 12-25). These principles, which are “very narrowly construed” (Opinion 14-150), have been applied to permit a judge who has a disqualifying relationship with a prosecutor to receive a “hand-up” of indictments from the grand jury (see Opinion 99-28) or to grant an unrepresented criminal defendant’s post-arraignment request for an adjournment to secure representation (see Opinion 09-61; see also Opinion 19-46 [town justice whose co-judge is unavailable to handle any cases may undertake the strictly ministerial role of depositing and transmitting fine money previously adjudicated by the co-judge, without screening those previously adjudicated cases for conflicts]).

         Decisions whether to defer a surcharge for an incarcerated inmate or adjourn a pending criminal matter are plainly judicial, not ministerial. In both situations the judge may grant or deny the request, as an exercise of discretion, and may not delegate the decision to non-judicial personnel. In both situations the opposing party is entitled to be heard and may object to the relief requested. Accordingly, the inquirer may not avoid the remittal process in either circumstance.

         Nor is the request to grant the release of a presentence investigation report to appellate counsel truly “ministerial” within the meaning of our prior opinions. Even when not objecting to release itself, the probation department that prepared the report may well, at a minimum, first seek redactions of victim or witness addresses, requiring adjudication from the judge. And of course, when a judge is disqualified, remittal cannot be accomplished unless all parties and their counsel consent (see Opinion 16-67).

         Finally, the judge asks if he/she may avoid the remittal process in unspecified matters involving the DA “where the decision would be mine alone to make and no party has standing to comment or question my decision.” Whether a party is entitled to notice and an opportunity to be heard in opposition to a request for judicial action, or has standing to object to a court’s ruling, present legal questions we cannot address (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; cf. Opinion 20-20 [judge may approve fee vouchers for defense counsel in criminal cases adjudicated while the judge was the DA, even though judge could not have presided in the underlying proceeding, where the DA has no statutory role in reviewing or approving such fee vouchers; and may assign attorneys to represent alleged parole violators in administrative parole revocation hearings, even though the underlying convictions were prosecuted during the judge’s tenure as DA, because the relevant statute does not appear to contemplate involvement by the prosecution in these hearings]; see also Opinion 16-55 [a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law, if any, is necessarily acting ethically]). But in any matter where the DA has a right to be heard or standing to object, the inquirer’s disqualification is required unless properly remitted. Further, to the extent that any “decision” made by the judge could potentially have gone the other way, it necessarily involves an exercise of discretion or adjudication and is non-ministerial.

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¹ The judge proposes to send “similar letters” to public defenders. Although we have not seen copies of those letters, we note they must differ in at least one significant respect, as the letter to the DA refers to the recipient’s identity as the complainant before the Commission.

² The judge’s proposed letter could potentially create an impression the judge is using a letter the DA wrote to a third party in another context to suggest the DA “should” remit disqualification.