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District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records

The Third Department determined the district attorney’s former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:

The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA — who was formerly a Columbia County Judge — from issuing it. This statute prohibits a former judge from “act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character” (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity… . Matter of Columbia County Subpoena Duces Tecum…, 2014 NY Slip Op 04104, 3rd Dept 6-5-14

 

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