Opinion 14-63
April 24, 2014
Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).
Digest: A city court judge who is appointed by a body of city officials that includes the mayor may preside in a case where the mayor, or the mayor’s relative, appears as an attorney representing a private party, provided the judge concludes he/she can be fair and impartial.
Rules: Judiciary Law § 14; Uniform City Court Act §§ 2104(e)(1)(I)-(iv); 2104(e)(2)(I); 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Joint Opinion 03-93/04-32; Opinions 11-64; 99-70 (Vol. XVIII); 93-115 (Vol. XI); 90-21 (Vol. V); People v Moreno, 70 NY2d 403 (1987); 2009 Op Atty Gen (Inf) 2009-2.
Opinion:
An appointed city court judge asks if he/she may preside in cases when the mayor, or the mayor’s first-degree relative, appears in City Court as an attorney representing a private party.1 According to the judge, the mayor is a member of the body of city officials that is vested with statutory power to appoint or re-appoint the inquiring judge to the position he/she currently holds.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).2
The Committee has previously considered somewhat similar inquiries in Opinions 90-21 (Vol. V) and 93-115 (Vol. XI). To understand the outcomes in those prior inquiries and the present one it is helpful to consider the different ways these city court judges are selected.
The current statutory scheme provides that city court judgeships are elective except as otherwise specified (see Uniform City Court Act § 2104[e][1]). However, pursuant to Uniform City Court Act § 2104(e)(2)(I), the mayor may make certain interim appointments to fill a vacancy in an elective city court judgeship, under specified conditions. The statutory language provides that “the mayor of the city in which the court on which the vacancy has occurred is located shall appoint a qualified person to fill the vacancy temporarily” until the next election (Uniform City Court Act § 2104[e][2][I]). On its face, this provision does not refer to any role to be played by the city council or other city officials in making the appointment.
With respect to appointive city court judge positions, the legislature has created several categories of appointing authorities. In some cities, appointments are made “by the mayor” individually (Uniform City Court Act § 2104[e][1][iii]), or “by the mayor ... with the advice and consent of the city council” (Uniform City Court Act § 2104[e][1][I]), while in other cities, the appointments are made “by the city council” or “by the city commission” (Uniform City Court Act §§ 2104[e][1][ii], [iv]). Thus, depending on the city, such judicial appointments may be made by one individual or by a group of individuals.
In Opinion 90-21 (Vol. V), the inquirer was a full-time judge who held an elective judicial office, but had initially been appointed to that office by the mayor on an interim basis. The Committee noted that “the judge prevailed in a general election a few months later[,]” and “[t]he only remaining power that the mayor has over the judge is the location of the court’s office space.” The Committee advised that “the perception is inescapable that a client of the mayor might be in a favored position” because “[t]he original appointment of the judge was within the mayor’s discretion, and the public may believe that the mayor continues to influence the judge, or that the judge remains indebted to the mayor because of the original appointment.” The interim appointment as described in the inquiry was apparently made by the mayor, in his/her discretion, as the sole appointing authority (cf. Uniform City Court Act § 2104[e][2][I]).
The Committee has also considered an inquiry from an appointed city court judge, who stated that he/she was appointed by the Mayor, and that the appointment was approved by the City Council (see Opinion 93-115 [Vol. XI]; cf. Uniform City Court Act § 2104[e][1][I]). The judge asked whether it was permissible to preside over cases where a City Council member appeared either as a party or as counsel to a party (see Opinion 93-115 [Vol. XI]). Under the circumstances presented, the Committee advised that disqualification was not necessary unless the City Council participates in setting the judge’s salary (see id.).3
In the Committee’s view, these two prior inquiries can be reconciled by considering the nature of the appointing authority: an individual who acts alone as the sole appointing authority (Opinion 90-21 [Vol. V]), rather than in conjunction with a larger group that only approves the appointment4 (see Opinion 93-115 [Vol. XI]; cf. Joint Opinion 03-93/04-32 [noting the “limited influence that any particular [member] attorney might have on the deliberations and decisions of the 14 member Advisory Council” which evaluates and makes recommendations regarding reappointments of Housing Court judges]). However, neither of these prior opinions directly addresses the situation presented here, in which a body of city officials actually makes the appointment.
The underlying statutory scheme does not appear to provide the mayor with any special role or greater influence on the appointment than other members of the appointing body. Instead, it appears that the mayor is merely one of several city officials who collectively make the decision to appoint or re-appoint city court judges; neither the initial appointment nor the re-appointment process is confined to the mayor’s discretion. Accordingly, the Committee concludes that the inquiring judge’s impartiality cannot reasonably be questioned merely because the mayor appears before the judge in a representative capacity on behalf of a client (see 22 NYCRR 100.3[E][1]; cf. Opinion 93-115 [Vol. XI]; Joint Opinion 03-93/04-32). The judge may therefore preside in such cases, as long as the judge concludes he/she can be fair and impartial, a matter confined to the judge’s discretion (see People v Moreno, 70 NY2d 403, 405 [1987] [judge “is the sole arbiter of recusal”]). Because neither disclosure nor disqualification is mandated, the judge may preside in matters where the mayor’s client’s adversary is proceeding without legal representation (see, e.g., Opinion 13-106 [where any disclosure the judge chooses to make is purely prophylactic, the judge need not disqualify him/herself when litigants appear pro se]).
In light of this conclusion, the judge inquiring likewise incurs no recusal or disclosure obligation solely because an attorney appearing before the judge is the mayor’s first-degree relative.
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1 A relative within the first degree of relationship by blood or marriage includes a parent, step-parent, child, or step-child (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system.”]).
2 Where, as here, the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), the remaining issue is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).
3 Of course, it is unlikely that a city council would participate in setting a city court judge’s salary, because “City Courts are state courts and City Judges are State officials” (Opinion 99-70 [Vol. XVIII] [noting that a city official such as the mayor “has no control over the salary or other employment benefits of City Judges”).
4 From a legal perspective, the Office of the Attorney General has advised that “appointment by the mayor with the advice and consent of the city council ... does not constitute appointment by the council” (2009 Op Atty Gen [Inf] 2009-2 [also advising that a city charter provision referring to “nominat[ion] by the mayor and appoint[ment] by the council” is superseded by Uniform City Court Act § 2104]).