Opinion 11-64

June 16, 2011

Digest:         A judge who recently appeared before a judicial screening panel may preside in a matter in which a member of the panel appears as an attorney, in the absence of any other disqualifying factor and assuming the judge can be impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); part 150; Opinions 10-121; 10-60; Joint Opinion 07-78/ 07-121; Joint Opinion 03-93/04-32; Opinion 94-86 (Vol. XII); People v Moreno, 70 NY2d 403 (1987); NYS Governor’s Executive Order 15; NYC Mayor’s Executive Order 8.

Opinion:

         A judge who is a candidate for another judicial office states that he/she has recently appeared before a political party’s judicial screening committee. The judge asks whether he/she has any disclosure or disqualification obligations when a member of the screening committee appears in the judge’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).

         Where, as here, the circumstances described do not appear to trigger specific grounds for disqualification (see 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14), the question is whether the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). The Committee has previously advised that a judge seeking re-election or re-appointment need not disclose or disqualify him/herself when a member of an applicable screening panel appears before him/her as an attorney (see Joint Opinion 03-93/04-32; Opinion 94-86 [Vol. XII]).¹

         Thus, in Opinion 94-86 (Vol. XII), the Committee advised that a full-time judge seeking re-election who appears before a bar association’s judicial screening committee need not disqualify him/herself from matters in which an attorney who sits on the screening committee appears before the judge, or disclose that fact to the attorney’s adversary. The Committee stated that “appearing before a bar association’s judicial screening committee is not a prohibited activity. It is a common practice of local bar associations to evaluate the qualifications of candidates for the bench. A refusal by a judge to appear could result in serious repercussions to the judge’s candidacy, especially if bar association or screening committee approval is a requirement of the political body nominating or appointing the judge” (id.). The Committee could “see no reason for the judge to recuse himself/herself, as it does not appear that the judge’s impartiality might reasonably be questioned by virtue of the judge’s appearance before the screening committee” (id.).

         Similarly, in Joint Opinion 03-93/04-32, the Committee advised that a Housing Court judge is not required to recuse or offer to recuse, solely because an attorney appearing before the judge is also a member of an Advisory Council that evaluates and makes recommendations regarding reappointments of Housing Court judges. The Committee noted that the Advisory Council is “but one entity that has an advisory role in reappointment along with bar associations and other interested parties, including, of course, the administrative judge” who actually makes the appointments (id.). Thus, the Advisory Council’s recommendation is not determinative of whether reappointment will be granted. Moreover, since the Advisory Council itself is a fourteen-member body, each member’s influence on the group’s deliberations and decisions is likely to be relatively limited (see id.). Accordingly, the Committee concluded that “the fact of membership alone does not give rise to a necessary inference that the judge’s impartiality and independence are compromised or might be reasonably perceived to be compromised in such a situation” (id.).

         In considering the present inquiry, the Committee notes that most individuals seeking election or appointment to judicial positions in the State of New York go before one or more screening panels.² Indeed, as the Committee has recognized, a candidate’s refusal to participate in a key screening panel could cause “serious repercussions to [his/her] candidacy” (Opinion 94-86 [Vol. XII]). In the Committee’s view, the public relies on such screening panels and especially on the participation of lawyers and other individuals familiar with the legal system who can meaningfully assess the qualifications, character and temperament of individuals who are seeking appointment or election as judges.

         Because persons seeking judicial office generally must, as a practical matter, submit their qualifications for the review of one or more screening panels, it is the Committee’s view that a judge’s impartiality cannot reasonably be questioned simply for participating in this routine process (cf. Opinion 10-60 [“[t]hat the OCA administers all the courts in New York State, including the inquiring judges’ court, does not create any appearance of impropriety that could cause someone to reasonably question the judges’ ability to be impartial” whenever OCA’s landlord is a party]).

         Accordingly, the inquiring judge need not disclose or disqualify him/herself because a member of the screening panel for the judicial office the judge seeks appears before him/her as an attorney. To the contrary, where disqualification is not mandated pursuant to the Rules (see 22 NYCRR 100.3[E]) or Judiciary Law §14, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see 22 NYCRR 100.3[E][1][a][I]; Joint Opinion 07-78/07-121). 

____________________________

           ¹However, in Opinion 10-121, the Committee advised that a judge who is a candidate for judicial office should disqualify him/herself, subject to remittal, from presiding in a case when an attorney who is a member of a political party’s candidate screening panel subcommittee that reviewed the judge’s application for the political party’s endorsement also is a partner in the plaintiff(i.e., party)/law firm in the case.

           ²Bar associations, political parties, and appointing authorities throughout the State organize local, regional or statewide judicial screening panels that may vary greatly in their membership, structure, and procedures (see e.g. 22 NYCRR part 150 [Independent Judicial Election Qualification Commissions]; NYS Governor’s Executive Order 15, Establishing Judicial Screening Committees [Apr. 2011, available at http://www.governor.ny.gov/executiveorder/15]; NYC Mayor’s Executive Order 8, Mayor’s Advisory Committee on the Judiciary [Mar. 2002, available at http://www.nyc.gov/html/acj/downloads/pdf/exec_order_8.pdf]).