Opinion 07-10

January 25, 2007

Digest:        A judge who previously served as a high-ranking executive branch official should recuse from any proceedings encompassing matters with which he/she had direct involvement while an executive branch official. The judge need not recuse from any other proceedings involving the executive branch unless he/she doubts his/her impartiality.

Rules:          Judiciary Law §14; 22 NYCRR 100.3(E)(1); 100.3(E)(1)(a)(ii); Opinions 07-35; 01-46; 00-119 (Vol. XIX); 96-139 (Vol. XV).

Opinion:

         A judge who recently served as a high-ranking official in New York State’s executive branch inquires regarding his/her recusal obligations in proceedings where the state’s executive branch and/or its agencies appear.

         The Rules Governing Judicial Conduct require a judge to disqualify him/herself in cases where “the judge’s impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1). Except in those specific instances where the Rules or Judiciary Law §14 mandate disqualification, the decision whether to recuse is “based on whether the judge believes he/she can remain fair and impartial” and is left to the sound discretion of the judge. Opinions 07-35; 00-119 (Vol. XIX).

         When actions involving the executive branch and/or its agencies come before the judge, the fact that the judge recently served as a high-ranking official in that branch does not, by itself, mandate recusal. 22 NCYRR 100.3(E)(1).

         The judge is required to recuse, however, from proceedings which encompass matters with which he/she had direct involvement while an executive branch official. Opinions 01-46; 96-139 (Vol. XV). In such cases, there is an appearance that the judge will have “personal knowledge of disputed evidentiary facts.” 22 NYCRR 100.3(E)(1)(a)(ii). 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. 22 NYCRR 100.3(E)(1).

         The judge need not recuse from other proceedings involving the executive branch or its agencies, unless the judge doubts he/she can be impartial in any such proceedings. 22 NYCRR 100.3(E)(1).