Opinion 13-175

December 12, 2013

Digest:         A judge is not disqualified from presiding over petitions prepared and filed by his/her successor in the County Attorney’s office, merely because these petitions rely on documents filed by another government official or department while the judge was employed as County Attorney.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(I); 100.3(F); Opinion 13-46; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time judge, who formerly served as the County Attorney, states that certain petitions currently before the judge “were executed by the present County Attorney” after the judge assumed the bench. The judge asks whether he/she may preside over proceedings that are “essentially a motion for a default judgment” on the present County Attorney’s petitions, where the petitions rely on documents another government official or department filed during the judge’s former employment as County Attorney. According to the inquiring judge, the other government official or department acted independently in filing the documents, without any oversight or involvement by the County Attorney’s office.

         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]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including instances where the judge knows that the judge served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][I]). Remittal is not available when a judge is disqualified by the terms of section 100.3(E)(1)(b)(I) (see 22 NYCRR 100.3[F]).

         Under the circumstances presented, the judge did not previously serve as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][I]); the petitions were prepared and executed by the judge’s successor, without the judge’s involvement, and the petitions do not mention the inquiring judge’s name. Nor does the fact that the supporting documents were filed during the judge’s former employment as County Attorney create any appearance of impropriety (see 22 NYCRR 100.2), as those supporting documents were prepared and filed by another government official or department without the inquiring judge’s involvement or oversight or that of his/her then-colleagues in the County Attorney’s office. Accordingly, the judge’s impartiality cannot reasonably be questioned on this basis (see 22 NYCRR 100.3[E][1]).

         Where, as here, disqualification is not mandated under the applicable objective standards, “the judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court’” (Opinion 13-46, quoting People v Moreno, 70 NY2d 403, 405 [1987]). Therefore, assuming the judge concludes that he/she can be fair and impartial, the judge may preside.