Opinion 14-189

December 11, 2014

Digest:         Under the specific circumstances presented, where a judge has issued a written decision indicating the judge’s impartiality has been compromised in a new case involving a particular litigant, based on the litigant’s recent disparaging remarks about the judge in connection with a recently concluded case, the judge must disqualify him/herself from all cases involving the litigant, including in any post-judgment proceedings in the recently concluded case, and the disqualification is not subject to remittal.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(a)(I); 100.3(F); Opinions14-121; 13-44; 00-10 (Vol. XVIII); 99-163 (Vol. XVIII); 91-51 (Vol. VII); Joint Opinion 92-114/92-127 (Vol. X); People v Moreno, 70 NY2d 403, 405 (1987).

Opinion:

         The inquiring judge says he/she recently presided in a jury trial resulting in a substantial verdict against one of the litigants. The litigant criticized the judge in public, including disparaging comments about the judge’s ethnicity and accusing him/her of ethnic bias. The media reported these comments. Thereafter, the judge was assigned a new, unrelated case involving the same litigant, and issued a written decision disqualifying him/herself from the new case “because of the disparaging remarks and to avoid any appearance of impropriety and other generic appearance and independence issues.” The judge nonetheless believes he/she can be fair and impartial in the recently concluded case, and asks whether he/she may preside in “any pending and impending post-judgment matters” in that case.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]). A judge must disqualify him/herself when disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14, including when the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]). Even if none of the enumerated circumstances applies, a judge must also disqualify him/herself when the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Ordinarily, a judge is not disqualified from presiding in a matter merely because a party has publicly criticized the judge, no matter how harshly, provided the judge can be fair and impartial (see Opinions 13-44 n. 2; 00-10 [Vol. XVIII] [noting “the fundamental view that a judge has the duty not to be swayed by fear of criticism and that a party should not be able to compel recusal merely by circulating accusations against the judge”]; Joint Opinion 92-114 & 92-127 [Vol. X]). Indeed, in Opinion 14-121, the Committee advised that a judge who has unnecessarily disqualified him/herself from one case after the litigant filed a complaint against the judge in connection with that case may nonetheless preside in new cases in which the litigant appears, provided the judge can be fair and impartial:

The fact that the inquiring judge previously exercised recusal when a particular individual appeared does not necessarily require the judge to disqualify him/herself from all matters involving that individual in perpetuity (see e.g. Opinions 99-163 [Vol. XVIII]; 91-51 [Vol. VII]). Where, as here, it appears the initial recusal was not mandated by prior rules or opinions, but was entirely prophylactic in nature, the Committee can see no reason to require disqualification in other cases in which that litigant appears, provided the judge can be fair and impartial.

         Under these specific circumstances, however, it appears the inquiring judge’s disqualification in the new case was not merely prophylactic. To the contrary, the judge chose to issue a written decision indicating that “appearance and independence issues” preclude him/her from presiding in a new case involving this litigant, based on the litigant’s recent disparaging remarks about the judge in connection with a recently concluded case. This written recusal decision can reasonably be perceived as a judge’s admission that he/she currently has a personal bias or prejudice concerning a party likely to compromise the judge’s fairness and/or impartiality in this litigant’s matters (see 22 NYCRR 100.3[E][1][a][I]). Accordingly, at this time, this judge must disqualify him/herself from all cases involving this litigant, including in any post-judgment proceedings in the recently concluded case for which the litigant criticized the judge. This disqualification is not subject to remittal (see 22 NYCRR 100.3[F]).