Digest:  Whether a judge who is seeking elective judicial office should exercise recusal in proceedings in which the chief assistant district attorney, who is the judge's opponent in the election, appears before the judge, is a discretionary decision within the conscience of the judge.
 

Rule: People v. Moreno, 70 N.Y.2d 403 (1987);
          22 NYCRR 100.3(E)(1); 100.5; 100.5(A)(1) (c);
          Opinions 92-82 (Vol. IX); 96-103 (Vol. XIV).
 
 

Opinion:

            A chief assistant district attorney is running in a primary against two sitting county court judges, both of whom were appointed to interim positions and who now seek elective judicial office. The chief assistant district attorney asks whether he/she is precluded from appearing before the two county court judges during the pendency of the race (00-78), and one of the judges seeks the Committee's guidance with regard to such appearances (00-80).

            At the outset, we note that this Committee has no authority to limit or prohibit the performance of official duties of a non-judge candidate for judicial office. That is, while the Committee, in interpreting the rules governing political activities as set forth in 22 NYCRR 100.5 of the Rules Governing Judicial Conduct, is empowered to issue advice to non-judge candidates with respect to political activities, we are not in a position to proscribe the performance of official governmental duties. Indeed, section 100.5(A)(1)(c) of the Rules provides that even with respect to political activities, the restrictions that might apply to judges in general do not "restrict a non-judge holder of public office in the exercise of the functions of that office." 22 NYCRR 100.5(A)(1)(c). Accordingly, we cannot say that, as a matter of judicial ethics, the chief assistant district attorney is precluded from appearing in court during the campaign, assuming that such appearances are part of his/her official duties. There is, of course, as suggested by the inquiring judge, the possibility of the District Attorney assigning another assistant to appear pending the outcome of the election. While this might be a possible course of action, its feasibility is also not something about which this Committee could or should express as an opinion.

            Thus, the question then becomes whether the judge, under these circumstances, is disqualified from presiding in any proceeding in which the chief assistant district attorney appears before the judge during the electoral campaign. Is such a proceeding "one in which the judge's impartiality might reasonably be questioned?" 22 NYCRR 100.3(E)(1). In Opinion 92-82 (Vol. IX) the Committee answered a similar question and concluded that a "judge may preside, where the judge's political opponent is an attorney in the case, unless the judge doubts his or her impartiality." In other words, that situation does not mandate recusal. Rather, the judge must search his or her conscience and determine whether recusal is the appropriate course to be followed. We therefore conclude that, in this instance, it is, in effect, a "discretionary decision within the conscience of the court ... " (People v. Moreno, 70 N.Y.2d 403, 405 [1987]) as to whether an appearance of impropriety arises should the judge preside where the judge's political adversary appears as an attorney before the judge during the pendency of the electoral campaign.¹
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

1. In Opinion 96-103 (Vol. XIV) the Committee advised that a judge must exercise recusal where the attorney appearing before the judge is a candidate for non-judicial office seeking to defeat another candidate who is on the same slate as the judge. In light of the views expressed herein, we now overrule Opinion 96-103 (Vol. XIV).