Opinion 08-59

April 24, 2007

Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.

Digest:         A judge who is a named plaintiff in a lawsuit against a municipality should, during the pendency of the lawsuit, disqualify him/herself from unrelated matters involving the municipality, subject to remittal.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); 101.1; Opinion 04-66.

Opinion:

         A number of individual members of a board of judges will be named plaintiffs in a declaratory judgment action that the board will file, seeking to enjoin a municipality from making a proposed change to court facilities. On their behalf, the inquiring judge asks about the recusal and disclosure obligations of the individually named plaintiff/judges when the municipality is a party before them in unrelated cases. Further, if the individually named plaintiff/judges are disqualified, the inquiring judge asks if these affected judges must announce their disqualification in each individual case, or if, instead, they may decline assignments to cases involving the municipality during the pendency of the declaratory judgment action.

         Pursuant to the Rules Governing Judicial Conduct, 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 in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). The Committee previously has advised that a judge’s impartiality is not necessarily subject to question when the judge is a party plaintiff in a small claims breach of contract action against the municipality when the municipality appears before the judge in unrelated matters (see Opinion 04-66). Nevertheless, to avoid even the appearance of impropriety, the Committee advised that the judge should not preside over such unrelated matters without first disclosing his/her lawsuit against the municipality, and, then, only after the parties consent to his/her continued participation in the case (see id.).

         Accordingly, during the pendency of the declaratory judgment action at issue in the present inquiry, a judge who is a named party plaintiff should disqualify him/herself from all matters involving the municipality (see 22 NYCRR 100.3[E]), subject to remittal (see 22 NYCRR 100.3[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 id.). Absent an agreement to remit the disqualification, the judge must recuse him/herself from the proceeding.

         The Committee declines to address whether judges who are individual plaintiffs in the declaratory judgment action should or may decline assignments of cases in which the respondent municipality is a party, as it involves a question about court administration, beyond the Committee’s jurisdiction (see 22 NYCRR 101.1).