Opinion 13-41

April 25, 2013

Digest:         A judge who is a defendant in federal court in his/her official capacity based on his/her prior judicial acts in a particular case (1) may continue to preside over any additional proceedings which come before him/her in the particular case, (2) may preside over other matters in which the judge’s federal court co-defendants or their counsel appear, and (3) is not precluded from appointing an attorney to Part 36 or other appointments merely because the judge and the attorney are co-defendants in the federal action.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); Opinions 12-162; 12-94; 08-59; 04-66; 98-69 (Vol. XVII).

Opinion:

         The inquiring judge has been sued in federal court in his/her official capacity, after denying a non-party’s “motion to intervene” in a case that the judge had previously decided.¹ Although the plaintiffs in the federal action are not parties to the underlying case, the judge’s co-defendants in the federal action include the prevailing party from the underlying case, as well as an attorney appointed by the judge in the underlying case. Under these circumstances, the judge asks whether disqualification is required in the underlying case, or in other matters in which the judge’s co-defendants or their counsel appear as parties or counsel. In addition, the judge asks if he/she may continue to appoint his/her attorney co-defendant to serve in other matters.

         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]). For example, a judge must exercise the power of appointment “impartially and on the basis of merit,” and avoid favoritism (22 NYCRR 100.3[C][3]). In addition, a judge must disqualify him/herself in any proceeding “in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Neither Judiciary Law § 14 nor Section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates disqualification under the circumstances the inquiring judge describes. As the Committee has previously stated, “the fact that a litigant has asserted various claims, in different forums, against the presiding judge alleging judicial, civil and criminal misconduct, does not provide an adequate basis by itself for requiring disqualification in the proceeding” (Opinion 98-69 [Vol. XVII]). “Indeed, any rule requiring automatic recusal under such circumstances could enable disgruntled litigants to engage in ‘judge shopping”’ (id.).

         Accordingly, the Committee believes that, should there be any additional proceedings or motion practice before the judge in the underlying case, the judge need not disqualify him/herself solely on the basis of a federal action challenging the judge’s judicial conduct.

         The Committee has also previously advised that a judge who is named as defendant/respondent in a federal proceeding in his/her official capacity may preside over an unrelated criminal proceeding wherein the plaintiff/appellant appears as complainant, provided the judge can be fair and impartial (see Opinion 12-94). Similarly, even when a judge has personally filed a Notice of Claim against a municipality, the Committee has advised that the judge may continue to preside in other proceedings involving the municipality, provided that the judge believes he/she can be fair and impartial (see Opinion 12-162). And “a judge’s impartiality is not necessarily subject to question when the judge is a party plaintiff ... against the municipality when the municipality appears before the judge in unrelated matters” (Opinion 08-59, citing Opinion 04-66).

         Therefore, the inquiring judge need not recuse him/herself in other matters in which the federal plaintiffs appear, provided that the judge concludes that he/she can be fair and impartial. Nor do the co-defendant relationships, which were created solely by the plaintiffs who commenced the federal action, raise any reasonable questions about the judge’s impartiality under the circumstances presented (see 22 NYCRR 100.3[E][1]). Accordingly, disqualification is not required in the underlying case or in other matters when parties or counsel from the federal action appear before the judge, provided that the judge can be fair and impartial.

         For similar reasons, the inquiring judge is not precluded from appointing an attorney to Part 36 or other appointments merely because the attorney and the judge are co-defendants in the federal action (see 22 NYCRR 100.3[E][1] [disqualification required where “the judge’s impartiality might reasonably be questioned” (emphasis added)]).

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     ¹Although there is “nothing presently before” the inquiring judge, he/she nonetheless “anticipate[s] further motion practice.”