May 6, 2016
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: (1) Under the circumstances, a judge need not disclose or disqualify him/herself from a case solely because one defendant (a) is a judge in the same geographic region and (b) previously had some minimal political and professional connections with the judge’s current law secretary. (2) The judge may, in his/her sole discretion, disclose such connections as a purely prophylactic measure without incurring any further obligation.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-81; 13-26; 12-154; 12-28; 11-125; 11-124; 09-111(A); 07-126; 07-11; 90-196; People v Moreno, 70 NY2d 403 (1987).
A full-time judge is presiding over a civil racketeering case brought by a pro se plaintiff. Among the numerous named defendants is another judge who presides in the same county, albeit in a different court and courthouse.1 The two judges do not socialize in their off-hours, although they see each other at professional events such as court-organized judges’ luncheons. The inquiring judge occasionally handles cases that originated in the defendant-judge’s courthouse and has, therefore, interacted with the court clerks assigned there on several occasions. The inquiring judge’s law secretary carried petitions for the defendant-judge’s spouse approximately a decade ago and had some professional interactions with the defendant-judge in a prior non-judicial capacity two decades ago. The inquiring judge believes he/she “can preside over this case fairly and impartially” but asks whether disclosure or disqualification is nonetheless required.
A judge must always avoid even the appearance of impropriety (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]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), or in other specific circumstances required by rule or law (see generally Judiciary Law § 14; 22 NYCRR 100.3[E][a]-[f]).
Here, because the various connections described in the inquiry do not trigger the disqualifications listed in Judiciary Law § 14 or 22 NYCRR 100.3(E)(1)(a)-(f), the key question is whether the judge’s impartiality may “reasonably be questioned” (22 NYCRR 100.3[E]).
Judge’s Connections. A judge “should consider his/her own relationship, if any, with the particular individual who is appearing before him/her as a party, using the general categories of social relationships set forth in Opinion 11-125 as a guide to the analysis” (Opinion 14-81; see Opinion 12-154). Under the facts described, it appears the inquiring judge and the defendant-judge are “acquaintances” who “greet each other and interact cordially when they participate in common but not necessarily personally shared interests” but do not otherwise initiate social contact with each other (Opinion 11-125). For instance, “[i]n the Committee’s view a judge is acquainted with an attorney [or judge] when their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession” (id.; see also Opinion 07-126). Thus, “the mere fact that a judge is acquainted with and cordial to an attorney [or judge] who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality” (Opinion 11-125). Accordingly, “[w]hen an attorney [or judge] with whom the judge [is acquainted] . . . appears before the judge, neither disqualification nor disclosure is required as long as the judge believes he/she can be fair and impartial. Rather, any decision to disclose the nature of the relationship . . . [is] left solely to the judge’s discretion” (id.). The inquirer’s occasional interaction with the court clerks in the defendant-judge’s courthouse does not pose a conflict because they are clerical court employees and such interaction is on a professional basis in the course of the judge’s judicial duties when presiding over cases that originated in the defendant-judge’s court.
Law Secretary’s Connections. On the facts described, the inquiring judge’s impartiality cannot reasonably be questioned based on prior connections between his/her law secretary and the defendant-judge. The law secretary’s participation in the defendant-judge’s spouse’s election campaign consisted of gathering petition signatures nearly a decade ago. The connection is too remote, and too distant in time, to require disclosure or insulation of the law secretary, let alone disqualification of the judge. Indeed, even where an attorney has recently “helped gather petitions and distribute flyers for the judge’s campaign,” the judge has no obligation to disclose or recuse, as such participation “is minimal” (Opinion 90-196 [emphasis added]; see also e.g. Opinions 12-28 [disqualification not required when a “campaign advisor” who did not play an active, significant or pivotal role in the judge’s campaign appears before the judge as an attorney]; 07-11 [judge need not insulate his/her law clerk from working on cases in which the District Attorney appears, even though the law clerk is supporting an opponent or running against the District Attorney]). Likewise, the even earlier professional interactions between the law secretary and the defendant-judge are “sufficiently remote from the inquiring judge that it does not, in and of itself, create any reasonable appearance of impropriety” (Opinion 11-124). Notably, the judge’s law secretary and the defendant-judge were never co-workers or associates, and did not have an attorney/client relationship, an employer/employee relationship, or the like.2 The interactions they may have had in their respective professional capacities two decades ago do not require disclosure or insulation of the law secretary from the present case, and cannot possibly create any reasonable basis to question the judge’s impartiality.
Considered separately or in the aggregate, these connections do not reveal any reasonable basis to question the judge’s impartiality (see 22 NYCRR 100.3[E]), or even “conceivably create an appearance of impropriety” requiring this judge to disqualify him/herself or make any disclosure (Opinion 14-81). Where, as here, disqualification is not mandated under an objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Thus, provided the judge believes he/she can be fair and impartial, he/she may preside, and disclosure is not required.
Finally, if the judge chooses, in his/her sole discretion, to disclose some or all of these connections, this would be a purely prophylactic disclosure because it is not in any way mandated by the rules or prior opinions (see Opinion 11-124). Thus, “it will not require the judge[’s] disqualification when a party is unrepresented. And, even if a party or counsel objects, the judge retains the discretion to preside under these circumstances” (Opinion 11-124 [citations omitted]).
1 The alleged “criminal enterprise” is the defendant-judge’s court part.
2 Even if there had been such a relationship, and it were recent, it would not necessarily require the judge’s disqualification (see e.g. Opinion 13-26 [judge may preside, but disclosure and insulation are required when the judge’s law clerk’s current personal attorney appears before the judge]; 09-111[A] [judge is not disqualified from matters involving law clerk’s former employer but must insulate law clerk from specific cases in which the law clerk was personally involved during his/her prior employment]).