Opinion 07-24

February 22, 2007

Note: This opinion has been modified, in part, by Opinion 08-152.

Digest:         A judge need not recuse when a labor union that endorsed the judge’s candidacy (without further campaign involvement) is a party in a matter before the judge.

Rules:          22 NYCRR 100.3(E)(1); Opinions 04-106; 03-64; People v. Moreno, 70 N.Y.2d 403 (1987)

Opinion:

         A full-time judge inquires whether he/she may preside over a matter in which one of the litigants is a labor union that endorsed the judge’s candidacy during the judge’s recent judicial campaign. The judge intends to disclose the endorsement to all counsel, advise them that he/she believes that he/she can remain fair and impartial, and give them the opportunity to be heard regarding the judge’s intention to continue to preside over the matter. The judge inquires whether this intended procedure is sufficient and whether recusal would be mandatory should one of the parties object.

         The Rules Governing Judicial Conduct require that a judge disqualify him/herself in any matter where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Where recusal is not mandatory, however, it is a matter of discretion, left to the judge’s personal conscience. People v. Moreno, 70 N.Y.2d 403 (1987).

         This Committee has previously addressed disclosure and/or recusal resulting from appearances by persons involved in the judge’s election campaign. Opinions 04-106; 03-64. In Opinion 03-64, the Committee held that a judge need not recuse in matters where one of the judge’s campaign supporters appears, unless the supporter undertook fund-raising or other active conduct in support of the candidacy (e.g., obtaining petition signatures or holding a leadership position in the campaign). Id. Even if the supporter’s name was listed on the candidate’s campaign stationery, the judge need not recuse from the matter unless the supporter was an active participant in the judge’s campaign. Id.

         Here, the labor union was merely among those endorsing the judge’s candidacy. This degree of involvement, without more, does not warrant a conclusion that the judge’s impartiality might reasonably be questioned and therefore does not mandate disqualification. 22 NYCRR 100.3(E)(1); Opinion 04-106.

         The judge should disclose the fact that a named party to the litigation endorsed his/her candidacy and should give all counsel and parties the opportunity to be heard. The judge may preside, even if a party objects, provided the judge determines that he/she can be fair and impartial.

         In deciding whether to recuse, however, the judge should consider all relevant factors, including, but not limited to: (a) the merits of any objections voiced by the parties or counsel, (b) any additional involvement by the labor union in the judge’s campaign, and (c) the period of time since the election. If, after considering all relevant factors, the judge concludes in his/her discretion that the specific circumstances might give rise to an appearance of partiality, the judge should recuse.