Opinion 04-106
October 28, 2004
Note: This opinion has been modified, in part, by Opinion 08-152.
Digest: (1) A judge running for re-election is not disqualified solely because a party or attorney was present at a fund-raiser on the judge’s behalf and is now appearing before the judge. (2) Knowledge that an attorney contributed to the judge’s campaign does not, itself, disqualify the judge when the attorney appears before the judge, but the judge, in his/her discretion, should weigh various factors in determining whether to recuse.
Rule: 22 NYCRR 100.3(E)(1); 100.3(F); 100.5(A)(5); Opinion 03-64
Opinion:
A City Court judge running for re-election seeks the Committee’s opinion about whether he/she must exercise recusal when attorneys or parties, who attended fund-raising events on the judge’s behalf during the campaign, thereafter appear before the judge. The judge also asks whether recusal is required if the judge has acquired knowledge that an attorney who is appearing before the judge had contributed to the campaign.
The Committee on occasion has addressed the question of judicial obligations of disclosure and/or recusal resulting from appearances by persons involved, to a greater or lesser degree, in the judge’s electoral campaign. (See, Opinion 03-64, and opinions cited therein.) None of these opinions, however, explicitly addresses the specific situations this judge postulates. For example, in Opinion 03-64 we said that the fact that an attorney had been listed as a supporter of the candidate on campaign stationery, in and of itself, does not mandate recusal. This is to be distinguished from an active engagement in fund-raising or other active conduct in support of the candidacy, (e.g. obtaining signatures on a petition or holding a leadership position in the campaign), where recusal is in order.
In this instance, the Committee is of the opinion that attendance at a fund-raising event, whether by an attorney or a party, in and of itself, does not give rise to a requirement of disclosure and recusal, for it does not appear to be substantively different from appearing on a letterhead as a supporter of the candidate’s re-election which is used to invite attendance at a fund-raiser. See, Opinion 03-64. Thus, in our view, that degree of involvement, without more, is an insufficient basis for concluding that the judge’s “impartiality might reasonably be questioned” in a matter where the attorney or a party appears. 22 NYCRR 100.3(E)(1). The judge therefore may preside, provided, of course, the judge feels that he/ she can be fair and impartial in the matter before the court under the particular circumstances.
A judge’s inadvertently acquired knowledge of a contributor’s identity does, however, present a somewhat different question. It has long been understood and we have opined that judges must be shielded from knowledge of the identity of their contributors. See, Opinion 02-06. Thus, judges are not permitted personally to solicit or accept campaign contributions, and are therefore required to form campaign committees precisely for that purpose. 22 NYCRR 100.5(A)(5). Here, the judge has acquired such knowledge by virtue of a newspaper report of public filings of contributions. Does that fact alone require the judge to disqualify him/herself when an attorney, who is listed as a contributor, now appears before the judge?
We are of the opinion that the judge’s knowledge of a contribution having been made by an attorney does not, standing alone, mandate the judge’s disqualification. In and of itself, the judge’s knowledge of a contribution, does not automatically give rise to an inference of partiality. But this does not necessarily conclude the matter. For the fact that the judge now has this knowledge should lead the judge to consider various factors that may be of significance in reaching a conclusion about recusal. For example, what is the size of the contribution in relation to other contributions by attorneys? Was the case in which the attorney appears pending before the judge at the time the contribution was made? Is the appearance being made during the course of the campaign? Is the attorney’s adversary also listed as a contributor? Did the judge have prior knowledge that the attorney was a supporter (e.g. having been listed as such or having been in attendance at a fund-raiser) and therefore might likely have been thought to be a contributor in any event?
These are just some of the considerations that the judge might find appropriate to take into account in reaching a recusal decision. If, under all the circumstances, the judge is confident he/she can be fair and impartial, no disqualification is required. If, on the other hand, in his/her discretion, and having considered all relevant factors, the judge concludes that the specific circumstances might give rise to a publicly perceived appearance of partiality, the judge, should disclose and recuse, subject to remittal under section 100.3(F) of the Rules.