Opinion 12-94

June 14, 2012

Digest:         A judge who is named as defendant/respondent in a federal proceeding in his/her official capacity may preside over an unrelated criminal matter wherein the plaintiff/appellant appears as complainant, provided the judge can be fair and impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i)-(ii); Opinions 12-7; 11-20; 09-47(B); 01-24 (Vol. XIX); 98-69 (Vol. XVII); 95-38 (Vol. XIII); 91-48 (Vol. VII); 91-25 (Vol. VII); 88-54 (Vol. II); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge was a named defendant in a federal action challenging the judge's denial of an individual's pistol permit application and is now the respondent on appeal. The plaintiff/appellant in the federal action is now the complainant in an unrelated criminal action assigned to the judge for arraignment and pre-trial proceedings and that may be assigned to the judge for trial. The judge states that he/she has never met the plaintiff/appellant, even during the judge's review and denial of the original pistol permit application, and does not "entertain any personal feelings either toward or against this individual." The judge believes that he/she can preside impartially over the matter, but asks whether disqualification is required under the circumstances presented.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in a proceeding in which his/her 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 id.; Judiciary Law §14). For example, a judge who has a personal bias or prejudice concerning a party or who has personal knowledge of disputed evidentiary facts must disqualify him/herself (see 22 NYCRR 100.3[E][1][a][i]-[ii]). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has previously considered whether a judge may preside over a matter after a party or attorney has sued the judge (see e.g. Opinion 12-7; 09-47[B]; 01-24 [Vol. XIX]; 98-69 [Vol. XVII]; 95-38 [Vol. XIII]; 91-48 [Vol. VII]; 91-25 [Vol. VII]; 88-54 [Vol. II]). In general, where the cause of action is directed to the judge's institutional or official role, and "there does not appear to be any personal or direct financial or other economic interest on the part of the judge in the outcome of [the] lawsuit" (Opinion 01-24 [Vol. XIX]), the Committee has advised that disqualification is discretionary, based solely on the judge's conscience (see e.g. Opinions 91-48 [Vol. VII]; 91-25 [Vol. VII]; 88-54 [Vol. II]; cf. People v Moreno, 70 NY2d 403 [1987]).

         Here, too, the fact that the judge was named as defendant/respondent in a federal proceeding in his/her official capacity does not, without more, cause the judge's impartiality to reasonably be questioned in other, unrelated matters wherein the plaintiff/appellant appears, provided the judge can be fair and impartial (see Opinion 12-7). The judge may therefore preside over a criminal matter in which the plaintiff/appellant appears as complainant unless the judge concludes, as a matter of conscience, that he/she cannot be fair and impartial (see People v Moreno, 70 NY2d 403, 405 [1987] [where disqualification is not mandated, the judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court"]).

         Of course, if the judge doubts his/her ability to be impartial in a particular matter, then disqualification is required (see 22 NYCRR 100.3[E][1][a][i]; Opinions 12-7; 11-20).