January 13, 2016
This responds to your inquiry (15-207) asking whether you may preside over cases in which your electoral opponent represents the county as prosecuting attorney.
The Committee has previously advised that a judge is not automatically disqualified when the electoral opponent of the judge appears before the judge, and the judge need not advise the parties or counsel about the judge’s political opponent in any pending matter.
The decision to recuse is a discretionary one within the conscience of the court. Accordingly, if the judge feels that he or she cannot be impartial, he or she must exercise recusal (see 22 NYCRR 100.3[E]). Factors to consider which would give rise to reasonable concerns about the judge’s impartiality would include the time elapsed since the campaign; the bitterness, if any, of the campaign; and whether the campaign involved personal attacks.
Enclosed, for your convenience, are Opinions 00-78/00-80; 92-82; 92-57; and 90-136 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)