Opinion 08-36

March 13, 2008

Digest:         (1) A judge who believes that he/she can be impartial is not disqualified in a proceeding solely because an attorney involved therein filed a complaint against the judge with the Commission on Judicial Conduct. (2) A judge may continue to serve on the Historic Landmarks Commission for the municipality in which the judge presides, but is disqualified in any proceeding that the municipality’s building department commences in the judge’s court on the Commission’s behalf.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); 22 NYCRR 100.4[A] [1]-[3]; 100.4(C)(3)(a)(i); Opinions 97-102 (Vol. XVI); 94-46 (Vol. XII).

Opinion:

         A part-time judge who has reason to believe that an attorney who unsuccessfully ran for judicial office or someone associated with the attorney’s campaign may file a complaint against him/her asks whether he/she is disqualified from presiding when the attorney appears before him/her. The judge also asks whether he/she can ask the attorney about: 1) any complaint that the attorney has filed or might file, or 2) whether the attorney knows of a complaint filed by someone else.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must disqualify him/herself in a proceeding if the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In Opinion 94-46 (Vol. XII), the Committee advised that a judge who believes that he/she can remain impartial is not disqualified in a case solely because an attorney involved therein filed a complaint against the judge with, inter alia, the Commission on Judicial Conduct. A judge is disqualified, however, once the Commission issues a formal charge against the judge (see Opinion 97-102 [Vol. XVI]).

         Therefore, the judge herein is not disqualified because he/she has reason to believe an attorney who unsuccessfully ran for judicial office or someone associated with the attorney’s campaign may file a complaint against him/her. Nor is it necessary or appropriate for the judge to ask the attorney whether the latter has filed a complaint against him/her, or if the attorney knows of a complaint filed by someone else.

         The judge also asks if he/she may continue to serve on the Historic Landmarks Commission for the municipality in which the judge presides. According to the judge, it is unlikely, but possible, that the municipality’s building department would commence a violation proceeding in the judge’s court against a property owner for violating the Historic Landmarks Commission’s regulations.

         Pursuant to the Rules Governing Judicial Conduct, a judge must conduct his/her extra-judicial activities “so that they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office” (22 NYCRR 100.4[A] [1] - [3]). A part-time judge may serve as an officer, director, trustee, non-legal advisor or member of a civic organization unless it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]).

         As the judge has indicated that the Historic Landmarks Commission is not likely to be engaged in proceedings that ordinarily would come before the judge, he/she may continue to serve on the Commission (see id.). Should the municipality’s Building Department commence a violation proceeding on behalf of the Historic Landmarks Commission that comes before the judge, however, he/she is disqualified from presiding, subject to remittal (see 22 NYCRR 100.3[E][1]; [F]). If the judge discloses the basis for his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent an agreement to remit the disqualification, the judge must recuse him/herself from the proceeding.