Opinion 13-47

April 25, 2013

Digest:         Absent additional factors, a judge is not disqualified solely because one of the litigants, in his/her capacity as a secretarial employee of a political party, answered the telephone when the judge called the political party’s headquarters to discuss his/her own candidacy during the applicable window period.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 00.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-64; 10-121; 02-108; 91-110 (Vol. VIII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge says he/she recently ran for elective judicial office, and presided over a trial during his/her campaign. One litigant, proceeding pro se, has demanded the judge disqualify him/herself because the litigant’s adversary was employed as an administrative assistant for a political party that nominated the judge as its candidate, and answered the phone when the judge called the political party’s headquarters. The judge acknowledges the underlying facts, but notes that “[a]t no time was the pending ... case mentioned by either” the judge or the litigant’s adversary. Moreover, although the pro se litigant’s papers “bristle with allegations of impropriety,” the inquiring judge believes he/she can be fair and impartial in the matter. The judge asks if disqualification is required under the circumstances.

         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 not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” ( 22 NYCRR 100.2[B]), must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” (22 NYCRR 100.3[B][6]), and must “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         There are two initial objective tests to determine if disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14? If not, might the judge’s impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1])? If disqualification is not mandated under either objective test, the judge “is the sole arbiter of recusal” (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 Opinion 11-64).

         Applying these principles to the present inquiry, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

         As for the second question, the Committee believes that the circumstances described do not create any objectively reasonable basis to question the judge’s impartiality (see 22 NYCRR 100.3[E][1]). Indeed, the Committee has previously advised that a judge need not disqualify himself/herself in a proceeding in which an officer of a political party that designated the judge for judicial office is likely to be a material witness, where “the party official did not play any specific role in the judge’s campaign beyond being an officer in the party that designated the judge” (Opinion 02-108). Here, too, the fact that a litigant, in his/her capacity as a political party’s secretarial employee, initially answered the telephone and transferred the judge to other individuals at the political party’s headquarters to discuss issues relating to the judge’s election campaign does not, without more, create any appearance of impropriety.¹ Under the facts presented, no impermissible ex parte communications took place, because the litigant and judge did not even refer to the pending case (see 22 NYCRR 100.3[B][6]). Moreover, there is no indication in the inquiry that the litigant played any role whatsoever in the judge’s campaign (cf. Opinion 02-108).

         Because disqualification is not mandated under the applicable objective standards, the judge is “the sole arbiter of recusal” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Here, the inquiring judge has stated that he/she can be fair and impartial and therefore need not exercise recusal.

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     ¹ By contrast, the Committee has advised that, under certain circumstances, disqualification is required when the judge’s opponent or a screening panel member appears as a litigant before the judge (see Opinions 10-121; 91-110 [Vol. VIII]). However, there is no indication in the present inquiry that the litigant served as a screening panel member or played any other specific role in the judge’s campaign.