Opinion 09-18

January 29, 2009

Digest:         A full-time judge who served on a state commission that advised the Governor about correctional facilities need not disqualify him/herself in all cases involving prison inmate matters, but should do so, subject to remittal, where matters involving the commission come before the judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 08-24; 03-96; 90-201 (Vol. VII).

Opinion:

         A full-time judge asks whether he/she is disqualified from presiding in cases involving prison inmates because of his/her prior membership on a state commission that advises the Governor about general statewide investigations and procedural reviews of state, county, and local correctional facilities. The purpose of the investigations and review is to determine whether the facilities are operated in compliance with applicable federal, state and local mandates and to ensure proper medical treatment and facilities are available for inmates.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 08-24, the Committee advised that a judge whose sibling serves on the same Commission that is the subject of the present inquiry need not disclose that fact and need not disqualify him/herself when a prison inmate appears in the judge’s court. And, in Opinion 03-96, the Committee advised that a part-time judge may serve on the board of a facility that houses youths convicted of felonies where the judge made no referrals to the facility and had no involvement with the residents. However, the Committee has advised that a part-time judge who is an education coordinator for a Chemical Abuse Treatment Program, may provide drug counseling and education to prison inmates, but should disqualify him/herself if an inmate he/she has counseled appears in the judge’s court (see Opinion 90-201 [Vol. VII]).

         Similarly, it is the Committee’s view that as long as the inquiring judge believes that he/she can be impartial, he/she need not disqualify him/herself from all matters involving prison inmates. However, in any matter, involving an inmate death being investigated by the commission, or other commission matters that come before the judge, the judge is disqualified subject to remittal (see 22 NYCRR 100.3[E][1]; 100.3[F]). Therefore, if the judge believes that he/she can be impartial and is willing to participate in the matter, the judge may disclose the reason for his/her disqualification on the record. Thereafter, if the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record or in writing that the judge should not be disqualified, the judge may participate in the matter (see 22 NYCRR 100.3[F]).