Opinion 13-83

June 13, 2013

Digest:         A judge, who has obtained an Order of Protection against an individual based on the individual’s conduct during a recent appearance before the judge, must disqualify him/herself from matters involving the individual until the Order of Protection expires. Once it expires, the judge may preside over matters involving the individual, provided the judge believes he/she 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)-(e); 100.3(E)(1)(a)(I); 100.3(F); Opinions 12-01; 11-86; 11-64; 08-170; 05-78; 99-78 (Vol. XVIII); People v. Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge says he/she has arraigned a particular person multiple times. That person recently “became extremely violent and carried on in a threatening manner” when remanded to custody. As a result, the judge filed criminal contempt charges against the individual and disqualified him/herself from the individual’s pending cases. The inquiring judge also sought, and received, an Order of Protection against the individual in another court of appropriate jurisdiction. The inquiring judge acknowledges he/she cannot preside in any case involving the individual while the Order of Protection is in effect and asks whether he/she may do so thereafter.

         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]). In addition, a judge must disqualify him/herself in a case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including but not limited to instances where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]).

         Of course, if the judge has a personal bias or prejudice concerning the individual, the judge must disqualify him/herself from matters involving the individual, without the possibility of remittal (see 22 NYCRR 100.3[E][1][a][I]; 100.3[F]; Opinion 08-170).

          If the judge has no personal bias or prejudice concerning the person, the Committee believes the circumstances here do not trigger any specific grounds for disqualification (see 22 NYCRR 100.3[E][1][a]-[g]; Judiciary Law §14), and the question is whether the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).¹ The Committee has repeatedly advised that threats of violence by a party appearing before a judge do not, without more, meet that standard (see Opinions 12-01; 11-86; 08-170; 05-78; 99-78 [Vol. XVIII]). As explained in Opinion 12-01:

The Committee has previously advised that a judge is not disqualified from presiding merely because one party threatens the judge or the judge's family, provided the judge believes he/she can be fair and impartial (see Opinions 11-86; 99-78 [Vol. XVIII]). Thus, absent other factors, the determination whether a judge can be fair and impartial in a case after a party threatens the judge or his/her family is a matter confined solely to the conscience of the particular judge (see Opinions 11-86; 99-78 [Vol. XVIII]; People v Moreno, 70 NY2d 403 [1987]).

Of particular note, the same standard applies even when the judge has filed a criminal complaint alleging a litigant has criminally harassed the judge while the case was pending (Opinion 99-78 [Vol. XVIII] [advising that disqualification is within the judge’s discretion]).

         The Committee agrees the judge should disqualify him/herself in all matters involving this person while the Order of Protection is in place (see 22 NYCRR 100.2[A] [“A judge shall respect and comply with the law...”]).

         Thereafter, when it expires, the judge must decide if he/she “can be fair and impartial, a matter entirely within the judge’s discretion” (Opinion 12-01; People v Moreno, 70 NY2d 403 [1987]). If he/she can be fair and impartial, he/she may preside in cases where the person appears (Opinions 12-01; 99-78 [Vol. XVIII]).

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     ¹ There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, 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).