January 31, 2019
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A full-time judge who recently resigned from the board of a public benefit corporation (1) must recuse him/herself, subject to remittal, on all matters on which he/she was briefed or involved as a board member but (2) may preside in other matters involving the entity, assuming the judge is satisfied he/she can be fair and impartial, and disclosure is entirely discretionary.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(c); 100.3(E)(1)(d)(ii); 100.3(E)(1)(e); 100.3(F); 100.4(C)(2)(a); Opinions 17-74; 16-130; 13-64; 07-10; 01-06; 00-18; 95-31; 88-84; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge recently resigned from the board of a public benefit corporation before assuming full-time judicial office.1 The position was uncompensated and did not involve providing legal advice. As a board member, he/she was briefed on certain topics related to the operation of the entity and its ancillary agencies. The judge plans to disqualify him/herself on any matters on which he/she was briefed or involved as a board member but asks if he/she may preside in other matters involving the entity and its ancillary agencies.
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]). A judge must disqualify him/herself in any proceeding in which “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]), including when the judge is an officer, director or trustee of a party (see 22 NYCRR 100.3[E][d][ii]), has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][a][ii]), has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][c]), or is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][e]).
Clearly, a judge who is currently an officer, director or board member of an entity may not preside over any matters in which the entity is a party (see e.g. Opinions 01-06; 00-18; 95-31; 88-84; 22 NYCRR 100.3[E][d][ii]). We must now consider the effect of former service on an entity’s board.
Prior Involvement or Knowledge
While resignation from the board ensures that the judge is no longer disqualified under Section 100.3(E)(1)(d)(ii), other provisions must still be considered. For example, when prior government employment results in knowledge about a specific matter in controversy, disqualification is required (see Opinion 07-10 [a judge who previously served as a high-ranking executive branch official should recuse him or herself from any proceedings encompassing matters with which he/she had direct involvement while an executive branch official]). In such cases, we said there is an appearance that the judge may have “personal knowledge of disputed evidentiary facts” (id.). “Even if the judge does not, in fact, have such personal knowledge, the appearance of personal knowledge might reasonably cause the judge's impartiality to be questioned” (id.).
Similarly, resignation from the board does not dispel an appearance of impropriety for matters in which the judge was briefed or had other involvement as a board member (see Opinion 07-10; 22 NYCRR 100.3[E]; 100.3[E][a][ii]). Accordingly, the judge must disqualify him/herself in such matters. Where, as here, the judge did not serve as a lawyer or legal advisor to the entity, the judge’s disqualification on matters in which he/she was involved or has personal knowledge is subject to remittal, provided the judge can be fair and impartial and has not been a material witness concerning it (see 22 NYCRR 100.3[F]; cf. Opinion 13-64 [describing scenarios in which remittal is forbidden]).
As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:
As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.
No Prior Involvement or Knowledge
On all other matters involving the entity and its ancillary agencies, i.e. those that did not come before the board and on which the judge was not briefed, the judge may preside if he/she can be fair and impartial. In other words, we believe the judge’s impartiality cannot “reasonably be questioned” in all matters involving the entity and its ancillary agencies, without more, merely because the judge previously served as an uncompensated board member. Where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
The judge may, in his/her sole discretion, choose to disclose his/her former involvement on the board. Where, as here, disclosure is not mandated, a judge who chooses to disclose also continues to retain full discretion about whether or not to preside, even if the parties object and regardless of whether any party is appearing without counsel (see Opinion 17-74).
Of course, the judge must disqualify him/herself if the judge doubts his/her own ability to be fair and impartial.
1 Many public benefit corporations, including the one involved here, focus on non-legal issues such as transportation, power, housing, or the like (see e.g. NYS Comptroller, Guide to Financial Operations at XVI.3.F). As a reminder, a full-time judge must not accept appointment to “a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][a]).