PERSONAL & CONFIDENTIAL

Opinion 22-20

March 7, 2022

Dear : 

         This responds to your inquiry (22-20) asking if you, a former prosecutor in the court where you now preside, may (1) sign “post dispositional documents” such as probation transfers, warrants, declaration of delinquencies, Securing Orders/Orders to Produce; and (2) conduct an arraignment of a particular individual in a matter where you would ordinarily be disqualified, and then “upon completion of the arraignment immediately disqualify” yourself from the matter.

Post Dispositional Documents

         We have said that 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). 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’” (id.).

         The functions you have described are not ministerial and your role in undertaking them cannot be considered “purely formal.” Therefore, you may not sign post-dispositional documents.

Arraignment 

         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 97-59 [where arresting police officer is likely to be material witness and is judge’s first degree relative, judge must disclose relationship and disqualify him/herself in any arraignment or other proceeding in which his/her relative is involved]; 95-05 [part-time lawyer/judge may not preside over proceedings involving current clients and may not arraign current, recent or past clients]).

         Accordingly, you may not preside over the arraignment of a particular individual in a matter where you would ordinarily be disqualified.

         Enclosed for your convenience are Opinions 20-82/20-86; 14-150; 12-25; 09-223; 97-59; 95-05 which address this issue.

                                                 Very truly yours,

                                                 Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

                                                 Lillian Wan

                                                 Supreme Court Justice

                                                 Committee Co-Chair

Encls.