Opinion: 00-10

January 27, 2000

Digest: A part-time judge is not disqualified from presiding in a criminal case on the grounds that (1) the judge's law partner, who is also the judge's brother, had contributed without the judge's knowledge to the election campaign of a person who is expected to be called as a prosecution witness in the case, and (2) the defendant has made complaints against the judge to law enforcement authorities and has published articles accusing the judge of a partisan conflict of interest.

Rule:  22 NYCRR 100.2(A); 100.2(B);
           100.3(B)(1); 100.3(E)(1) et seq.;
           Opinions 88-54 (Vol. II); 90-107 (Vol. V);
           93-104 (Vol. XI); 95-138 (Vol. XIII);
           96-114 (Vol. XV); 98-22 (Vol. XVI).


            A town justice asks whether recusal is required by the judge, on motion of the defendant, in a pending criminal action because (1) the justice's law partner, who is also the judge's brother, contributed $100 from his own separate funds to the election campaign of the sheriff of the county, who is expected to testify in the case as a prosecution witness; and (2) the defendant made complaints against the judge to law enforcement authorities and in a newsletter published by the defendant.

            The defendant is charged with misdemeanors and violations relating to alleged harassment and stalking of public officials. Felony charges against the defendant are pending in the County Court. Neither the inquiring justice nor the judge's brother is a complainant or witness in any of these cases. The charges pending in the justice's court were transferred from another town's court on request of that town's justice, on the basis of a conflict.

            The inquiring justice relates that he/she had no knowledge of his/her partner/brother's campaign contribution until the defendant cited it; that the justice and spouse and children have made no such contributions; and that the judge can be fair and impartial in the case. Further, there was no knowledge of contributions made to the sheriff's campaign by complainants in the defendant's cases, of which the defendant has also complained.

            The judge also reports that after the case was assigned, the defendant made complaints against the judge to the New York State Police and U.S. Postal investigators, and that these agencies have told the justice that the complaints are unfounded. The defendant also has written articles critical of the judge and many of the other participants in her pending cases, in a local newsletter, which she publishes on her own and which appears irregularly. Her self-published articles have been reported on in the mainstream local press.

            On these reported facts, it is our opinion that the inquiring judge is not required to recuse him/herself.

            Specifically, a judge is required to disqualify himself or herself in a proceeding in which the judge has a personal bias or interest concerning a party (22 NYCRR 100.3[E][1][a][i]); or a lawyer with whom the judge has practiced law served during that association as a lawyer concerning the matter now pending before the judge (22 NYCRR 100.3[E][1][b][ii]); or a person within the sixth degree of relationship to the judge either has an interest that could be substantially affected by the proceeding (22 NYCRR 100.3[F][1][c][iii]); or is likely to be a material witness in the proceeding 22 NYCRR 100.3(E)(1)(c)(iv). Also, a judge shall not allow political or family relationships to influence the judge's judicial conduct or judgments. 22 NYCRR 100.2(B). On the facts stated by the justice, none of these provisions applies to the instant situation.

            Moreover, even when none of the aforementioned specific provisions applies, a judge also shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In addition, a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A).

            In applying such provisions as they relate to relatives, the Committee has previously advised that an Acting County Court Judge may preside in criminal cases investigated by the County Sheriff's Department in which the judge's son, an officer of that department, did not personally participate (Opinion 93-104 [Vol. XI]); and that a judge's spouse may make contributions to political candidates from separate funds. Opinions 95-138 (Vol. XIII), 98-22 (Vol. XVI).

            As to the defendant's claims involving the judge, while in certain cases criticism of a judge by a party may require recusal, on the present facts reported by the inquirer, grounds for disqualification are not present. In previous opinions this Committee concluded that disqualification of a judge is not mandated where one of the parties to the litigation has made a complaint against the judge to the State Commission on Judicial Conduct (Opinion 96-114 [Vol. XI]); or where a pro-se litigant has named the judge as a co-defendant with numerous other judges in another action also pending before the judge (Opinion 90-107 [Vol. VI]); or where a plaintiff in a case before the judge also filed an action in federal court seeking damages from the judge for alleged denial of his civil rights in connection with the state-court matter. Opinion 88-54 (Vol. II). All such opinions reflect the fundamental view that a judge has the duty not to be swayed by fear of criticism and that a party should not be able to compel recusal merely by circulating accusations against the judge. 22 NYCRR 100.3(B)(1).

            For all the aforementioned reasons, the Committee concludes that, based on the facts presented by the judge, an objective observer would not reasonably question the judge's impartiality and therefore recusal is not required.