Opinion 11-26

March 9-10, 2011

Digest:         A judge is not required to disqualify him/herself from a matter involving the constitutionality of a municipal ordinance solely because the same ordinance was in effect during the judge’s former employment as the municipality’s counsel.

Rules:          Judiciary Law §14; 22 NYCRR part 100, Preamble; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100,3(F); Opinions 09-139; 07-30; 03-87; 93-116 (Vol. XI); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge previously served as counsel to a municipality for over a decade, although this former employment ended twenty-five years ago. The judge is now presiding over a matter in which a defendant who allegedly violated a municipal ordinance last year is challenging the constitutionality of the ordinance. The judge believes he/she can be fair and impartial, but the prosecutor has asked the judge to disqualify him/herself from the matter because the ordinance was “on the books” when the judge served as the municipality’s counsel and therefore, according to the prosecutor, the judge “most probably [was] asked to uphold and defend the constitutionality of [the] provision.” The judge asks whether disqualification is required.

         A judge must avoid even the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Clearly, a judge who cannot be impartial concerning an issue must disqualify him/herself, and remittal is not available (see 22 NYCRR 100.3[E][1]; 100.3[F]). Here, the judge believes he/she can be impartial and the facts set forth by the judge do not appear to trigger any specific disqualification requirements (see generally Judiciary Law §14; 22 NYCRR 100.3[E][1][a]-[e]). Nonetheless, if the judge’s impartiality might reasonably be questioned by others, he/she must disqualify him/herself (see 22 NYCRR 100.3[E][1]).

          The Committee has previously advised that a judge who exercised supervisory authority in a government law office or agency prior to assuming the bench must disqualify him/herself from cases that were pending while the judge served in such capacity when those cases came before him/her as a judge (see Opinion 09-139; see also Opinion 07-30 [judge must disqualify him/herself in any matter in which the judge participated in any way, personally or in a supervisory capacity, while serving as an assistant corporation counsel]). Here, however, 25 years have passed since the judge served as counsel for the municipality, and the prosecutor does not claim that the matter was pending during the judge’s employment with corporation counsel. To the contrary, it appears that the charged violation is alleged to have occurred within the past year.

         Nor does the prosecutor identify any facts based on the judge’s conduct in his/her former capacity as counsel for the municipality that might provide any basis – much less a reasonable one – to question the judge’s impartiality 25 years later with respect to this particular ordinance. The prosecutor does not even claim that the judge ever took a public position on the constitutionality of the provision, whether in litigation or otherwise. To the contrary, the prosecutor merely speculates that the judge “most probably” would have been asked to uphold and defend the constitutionality of the ordinance during that period.

         Even if the Committee were to assume, for the sake of argument, that the prosecutor’s speculation is correct, the Committee believes that the mere fact that a judge may previously have worked on a specific side of an issue as an attorney, standing alone, is not a reasonable basis for questioning the judge’s impartiality. For example, the Committee has recognized that former prosecutors who become judges may preside over criminal matters (see Opinions 03-87 [judge who had been the district attorney may even hear cases “prosecuted by the same prosecutor’s office,” but should not preside in any matter that was pending as a prosecution or as a matter under investigation by that office as of the date the judge assumed judicial office]; 93-116 [Vol. XI] [noting that the judge formerly served as an assistant district attorney and now “primarily presides over criminal cases”]).

         Absent any facts which would reasonably undermine public confidence in the judge’s ability to be fair and impartial, and further assuming the judge believes he/she can be fair and impartial, the judge need not disqualify him/herself under the circumstances presented (see 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987]).