Opinion 07-25

February 22, 2007

Digest:         On the facts, as presented, a judge should not exercise recusal where a State Legislator or a member of his/ her law firm appears as attorney in a case before the judge on the ground that there is a long standing issue of judicial salary increases presently before the Legislature.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(E)(1); Opinions 89-93; 92-75.

Opinion:

          An administrative judge submits the following inquiry which, as explained herein, raises for consideration a question of first impression:

                                       I am writing to you because I have had inquiries

                                       from a number of judges who have had other judges

                                       suggest that they recuse themselves, where a State

                                       Legislator or a member of his or her law firm appears

                                       before them, in light of the long standing issue of

                                       judicial salary increases presently before the

                                       Legislature. These judges do not want to consider

                                       recusing themselves unless it is ethical to do so in

                                       that situation. I respectfully ask for guidance from

                                       the Advisory Committee whether such recusals would

                                       be consistent with the Chief Administrator’s Rules

                                       Governing Judicial Conduct were these judges to accede

                                       to these suggestions.

         In our opinion, on the facts as presented, it would not be consistent with the Rules Governing Judicial Conduct for a judge to exercise recusal on the ground stated, i.e., “the long-standing issue of judicial salary increases presently before the Legislature.”

         In Opinion 89-93 the Committee addressed the question whether judicial disqualification is required where a State Senator or an Assembly member appears as attorney before a full-time judge, inasmuch as the State Legislature establishes the salaries of the judges of all courts other than town and village courts. The Committee had previously held that a town or village justice should disqualify him/ herself where a town or village legislator, who participates in setting the justice’s salary, appears as attorney. Such disqualification was subject to remittal. The Committee concluded in Opinion 89-93 that there was a “major difference” between the two situations. The relationship between the judge and the salary-setting attorney was much closer in a town or village and was likely to be so perceived. However, a different issue is presented - because the relationship would be significantly more remote or distant - were a county-level judge to preside over a case wherein a party is represented by a State Legislator/attorney. Therefore, we stated that the judge in the latter situation need not recuse him/herself when such an appearance is made.

         Thus, the teaching of Opinion 89-93 is that the mere fact that a State Legislator (or his or her law firm) is appearing before a judge does not, in and of itself, and standing alone, constitute an adequate basis for concluding that the judge could not be fair and impartial, or is likely to be perceived as not being fair and impartial, thereby requiring recusal under section 100.3(E)(1) of the Rules Governing Judicial Conduct. 22 NYCRR 100.3(E)(1).

         Here, however, as stated above, we are being asked a question of first impression: whether, when such an appearance is being made, there may be an additional factor present which could justify recusal. In this instance, that additional factor is the longstanding issue of judicial salary increases presently before the Legislature.

         In our view, while conceivably there may be other factors or circumstances present when a State Legislator appears, the sole additional factor specified in the inquiry before us does not suffice to justify recusal, and, indeed, recusals on the stated basis would not be proper. The judges referred to in the inquiry are willing to preside. Presumably, that means they believe they can be fair and impartial when an attorney who happens to be a Legislator appears on behalf of a client. If so, then exercising recusal solely because the longstanding issue of judicial salary increases is currently before the Legislature would be improper. For it is not, in our opinion, a circumstance which, in and of itself, gives rise to the conclusion that “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) when a State Legislator (or his or her law firm) appears before the judge as attorney.

         Indeed, opting for disqualification on the ground stated would, we believe, erode public confidence in the integrity, impartiality and independence of the judiciary. 22 NYCRR 100.1; 100.2(A). As stated in Opinion 92-75, “. . . a judge should not recuse himself or herself from proceedings unless his or her impartiality could be questioned or would otherwise create an appearance of impropriety . . . the judge should not consider recusal unless he or she believes that he or she could not be impartial.” Since none of these conditions is present in the inquiry before us, nor are any of the circumstances specified in 22 NYCRR 100.3(E)(1)(a)-(f) or any statutory provision, it follows, that the judges should, under these circumstances, decline to disqualify themselves.