July 12, 2005
This is in response to your inquiry (05-77) in which you seek the Committee’s opinion as to whether you should sua sponte exercise recusal should one of the parties in a matter before you call as an expert witness a particular individual who would testify as to legislative intent involving a certain statute. Legislative intent is a contested issue in the evidentiary hearing over which you are presiding as trier of the facts.
The individual in question is your State Senator whom you know personally and are friendly with, and who was a “key member” of your campaign committee when you were seeking election to the [ ] court over a three-year period. Further, you believe it likely that his support engendered financial contributions from others. Also, you state that you “communicate with him on occasion on issues relating to potential legislation.” You anticipate seeking his support should you seek re-election three years from now.
In addition to the above facts as set forth in your letter, you subsequently indicated: (1) you did exercise recusal in the past when the individual appeared before you as a character witness in a trial over which you were presiding during your prior campaign; and (2) should you indicate a disposition to recuse, the party on whose behalf he would be testifying would have no difficulty securing a substitute expert witness.
Under all the circumstances, the Committee believes you should exercise recusal, assuming the party insists on introducing the anticipated testimony. Notwithstanding the adversary party’s respect for your integrity and the absence of expressed concern regarding your ability to decide the issue fairly and impartially, the Committee is of the view that the totality and history of the relationship, including your stated intention to seek his future political support should you seek re-election in 3 years, may give rise to an appearance of impropriety were you to decide the case based on his testimony. 22 NYCRR 100.2; 100.3(E)(1). We further note that the adversary party gratuitously stated that “it is concerned about a possible appearance of impropriety to the public in its view of the court’s ultimate decision on the matter.”
Accordingly, we advise you to notify the parties of your intention to recuse if the individual in question is called as a witness.