Opinion 16-77

June 16, 2016

Digest:         A judge, whose administrative judge has commenced a lawsuit against certain entities and attorneys for alleged misconduct in the judge’s court, is not disqualified from cases involving those entities and attorneys, provided the judge can be fair and impartial. The judge need not make any disclosure of the administrative judge’s lawsuit but may do so in his/her sole discretion.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-124; 08-76/08-84/08-88/08-89; 07-140/07-84; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judges’ administrative judge is a named plaintiff in a proceeding against certain entities and attorneys for allegedly fraudulent and deceptive business practices, including “improperly and illegally obtain[ing] default judgments.” The administrative judge is seeking, inter alia, an order vacating all default judgments obtained by those entities and an order of restitution. Moreover, many defendants in those default judgment cases are now moving to vacate the defaults based on similar allegations of fraud. The inquiring judges preside in a court where some of the default judgments were obtained, and they ask whether they must recuse when these same entities and/or attorneys appear before them.

         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]). A judge must disqualify him/herself in specifically enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Two prior opinions provide guidance. In Opinion 07-140/07-84, the Committee advised that a judge should not recuse when a member of the state legislature (or a member of his/her firm) appears before the judge, solely because other judges and/or a judges’ association have filed a lawsuit against the legislature seeking a judicial salary increase. In Opinion 08-76/08-84/08-88/08-89, the Committee similarly advised that a judge need not recuse while the Chief Judge’s lawsuit concerning judicial salary increases is pending, merely because (1) a state legislator appears before him/her as counsel or as a party; (2) a state legislator’s partner or associate appears before the judge as counsel; or (3) an attorney from a law firm representing one of the parties named in the Chief Judge’s litigation appears before the judge. In both opinions, the Committee emphasized that the inquiring judges were not named parties and had no direct or personal involvement in the lawsuit. Indeed, the inquiring judges were not consulted about bringing the lawsuit or about the allegations and were not likely to be consulted on any potential settlement (see Opinions 07-140/07-84; 08-76/08-84/08-88/08-89).

         Here, too, the inquiring judges are not named parties in their administrative judge’s proceeding and have no direct or personal involvement in it. Indeed, they are “duly elected or appointed public officials who are vested with their own independent authority and obligations as judicial officers” (Opinion 11-124), regardless of their administrative judge’s litigation activities. Accordingly, the judges may preside in cases involving their administrative judge’s litigation opponents, provided they can be fair and impartial.

         The judges may, of course, voluntarily choose to disclose the administrative judge’s pending proceeding if they wish to do so. This decision remains within an individual judge’s discretion, should that judge deem it appropriate (see Opinions 11-124; 08-74/08-84/08-88/08-89) and does not require disqualification.