Opinion 16-26

March 16, 2016

Digest:         A Court of Claims judge has no duty to disclose or disqualify him/herself from cases involving the Attorney General’s office, based only on media efforts to link the judge and his/her spouse with a person whom the Attorney General is investigating.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 11-64; 10-168; 00-10; 92-114/92-127; People v Moreno, 70 NY2d 403, 405 (1987).

Opinion:

         A Court of Claims judge says a local media outlet, in reporting a person’s allegedly improper conduct, has highlighted certain social and political connections between that individual’s family and the judge’s family.¹ The media now states the Attorney General is investigating the individual in question. The judge and his/her spouse are not, to their knowledge, under investigation, nor do they believe they have any information likely relevant to that inquiry. Nonetheless, the judge asks if he/she has any duty to disclose or disqualify him/herself from any matters involving the Attorney General’s office in light of this negative media coverage.

         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]). Therefore, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee believes these facts do not create any objectively reasonable basis to question the judge’s impartiality in all matters involving the Attorney General’s office (see 22 NYCRR 100.3[E][1]). Now, neither the judge nor his/her spouse is under investigation (cf. Opinion 10-168 [a judge whose spouse has retained counsel and is considering making a claim against a municipality for personal injuries “need not exercise disqualification from matters in which the municipality is a party unless and until his/her spouse files the notice of claim”]). Nor can the media force the judge’s disqualification merely by attempting to associate the judge with alleged misconduct not involving him/her (cf. Opinions 00-10 [“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”]; 92-114/92-127 [disqualification is not mandated “merely by virtue of the fact that people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her”]).

         As this judge’s impartiality cannot reasonably be questioned under these facts, he/she has no duty to disclose or disqualify him/herself from cases of the Attorney General’s office, although the judge may do so in his/her sole personal discretion (cf. People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own impartiality in this scenario, then he/she must not preside (see Opinion 11-64).

________________________

      ¹ For example, discussion of the alleged misconduct is accompanied by images depicting the judge or his/her spouse (an elected non-judicial official) together with the individual or the individual’s spouse, at public events that have no discernable connection with the alleged misconduct.