Joint Opinion 07-140 and 07-84

September 6, 2007

Digest:         The mere fact that individual judges file, or a judges’ association files, a lawsuit against the New York State Legislature concerning a judicial salary increase does not, in and of itself, require a judge to exercise recusal when a New York State Legislator, or a member of his or her law firm, appears before the judge.

Rules:          22 NYCRR 100.3(E)(1); Opinion 07-25; 89-93 (Vol. IV).

Opinion:

         Two judges ask separately whether they must exercise recusal when an attorney appearing before them is a member of the New York State Legislature or a member of a New York State Legislator’s law firm. The first inquirer knows of a pending lawsuit concerning judicial salary increases, filed by three other judges. The second inquirer anticipates that a judges’ association to which he/she belongs will file a similar lawsuit on behalf of its members.

         A judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinion 89-93 (Vol. IV), this Committee advised that although members of the New York State Legislature establish the salaries of judges who preside in state-funded courts, these judges are not required to exercise recusal when a New York State Legislator (or a member of his or her law firm) appears before the judge. Because the Legislature as a whole establishes the salaries of all judges throughout the state, the relationship between one particular judge and one particular New York State Legislator is remote enough to prevent the questionability of judge’s impartiality on that basis alone. Id.

         Similarly, in Opinion 07-25, the Committee advised that the long-standing issue of judicial salary increases, in and of itself, does not mandate recusal when a New York State Legislator (or a member of his or her law firm) appears before a judge whose salary is established by the New York State Legislature. The Committee further advised that exercising recusal solely on the basis of the long-standing issue of judicial salary increases would be improper, because, by itself, it is not a reasonable basis for someone to question a judge’s impartiality.

         In the present inquiries, neither judge is (or expects to be) a named party to the lawsuits in question. Nor has either judge indicated that any particular New York State Legislator is (or will be) a named party to the lawsuits in question. Most important, neither judge has indicated that he/she cannot remain impartial if a New York State Legislator (or a member of his or her law firm) appears in his/her court. Neither judge, therefore, should exercise recusal when a member of the New York State Legislature (or a member of his or her law firm) appears before the judge solely on the basis that one or more individual judges, or a judges’ association, has filed a lawsuit against the New York State Legislature concerning judicial salary increases.