Opinion 11-135

December 8, 2011

Digest:         A judge who served on an ad hoc committee that advised court administrators on the proposed wording of a form need not disqualify him/herself in a case where a litigant has challenged the court administrators’ authority to issue rules pertaining to use of the form.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinion 10-190.

Opinion:

         The inquiring judge served on an ad hoc committee that advised court administrators on the proposed wording of a form to be used in certain court proceedings in which the inquiring judge presides. The committee’s work included recommending language for inclusion in a form under consideration that would be filed in every such proceeding. Ultimately, the court administrator issued an order mandating party/plaintiffs in these proceedings to file the form, which includes the wording the committee proposed, in every case they commence.

         The inquiring judge asks whether he/she must disqualify him/herself from a case in which a party has filed a motion challenging the constitutionality of a court administrator’s mandate. The inquiring judge indicates that the members of the ad hoc committee were never asked to advise court administrators and never discussed a court administrator’s authority to issue such a mandate. The inquiring judge also indicates that he/she can be fair and impartial in deciding the motion.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the specific instances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a town justice who served on the town board before assuming the bench and voted on legislation amending or promulgating municipal laws and ordinances is not required to disqualify him/herself in cases where a defendant is charged with violating those laws and ordinances unless the judge believes that he/she cannot be impartial in those cases (see Opinion 10-190).

         Unlike the judge in Opinion 10-190, the judge in the present inquiry was only one member of an ad hoc committee that recommended language to be included in the document in question. The court administrators, presumably with the advice of staff, ultimately decided whether to adopt the proposed wording for use in the form and whether mandating that party/plaintiff’s file the form in every case is within the court administrators’ authority. Therefore, it is the Committee’s view that the inquiring judge is not required to disqualify him/herself from the case in which a party has moved to challenge the court administrators’ authority to mandate that party/plaintiff file the form with the proposed wording in every case of a certain type.