Opinion 19-69

June 20, 2019

Digest:         On these facts, a town justice who disqualified him/herself in one small claims case where a village police officer was a party is not automatically disqualified from hearing all future matters involving the village police, provided he/she can be fair and impartial, even though the justice mentioned his/her prior law enforcement career and “many close bonds and friendships” within the department. The judge may, in his/her sole discretion, clarify his/her rationale and/or explain in future cases that he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 100 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(a)(i); Opinions 18-104; 16-114; 14-189; 14-121; 14-17; 14-04; 11-125; 99-163; 91-51; People v Moreno, 70 NYS2d 403 (1987).

Opinion:

         The inquiring justice recently disqualified him/herself from a small claims matter involving a village police officer. In explaining his/her rationale, the judge referred to his/her prior law enforcement career and “many close bonds and friendships” with village police department personnel, then concluded “I do not feel that I can remain a wholly objective party, adequately fulfilling my duties as an impartial justice, while hearing this case.” On reading this explanation, the District Attorney opined the judge “may have inadvertently recused [him/her]self from any further actions, be they civil or criminal, in the Village.” The judge avers he/she did not intend to create this impression and meant only to recuse him/herself from one case: this specific small claims case involving this specific police officer. The judge emphasizes he/she can, in fact, be completely fair and impartial in criminal matters. The judge asks for guidance on how to “remedy this situation” for future cases involving the village police department.

         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]). Thus, a judge must disqualify him/herself where required by rule or law (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” (22 NYCRR 100.3[E][1]), including when the judge has a “personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][i]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]; Opinion 18-104).

         We note, preliminarily, that if the judge maintains a social relationship with a former public sector colleague, he/she should carefully consider his/her present relationship with that individual in light of the categories set forth in Opinion 11-125 whenever the former colleague appears before him/her (see e.g. Opinions 16-114; 14-04). Of course, if the judge concludes his/her sole relationship with a particular police officer is that of an “acquaintance” under Opinion 11-125, neither disclosure nor disqualification is required, unless the judge doubts his/her own impartiality.¹

         The fact that the inquiring judge previously disqualified him/herself in one small claims matter involving one police officer does not necessarily require the judge to disqualify him/herself from all matters involving the department and its employees in perpetuity (see e.g. Opinions 99-163; 91-51; 14-121). Although the judge made broad disclosures concerning his/her law enforcement background and social relationships, the judge’s clearly stated core concern was his/her inability to remain objective and impartial “while hearing this case” (emphasis supplied); he/she expressed no views on other matters.² Thus, provided the judge can be fair and impartial, and absent factors requiring disqualification in a particular case, we see no reason to require disqualification in all village police cases – let alone “any further actions, be they civil or criminal, in the Village” – based solely on this particular recusal decision.

         Although the judge need not take any further action, we note the judge also may, in his/her sole discretion, address the District Attorney’s concerns by clarifying his/her rationale and/or explaining in future cases that he/she can be fair and impartial in matters involving the village police (cf. Opinion 14-17 [judge may, to the extent permitted by law, amend his/her prior order to correct an error or omission that has been brought to the judge’s attention and may send the amended order to all parties entitled to a copy of the order, along with an appropriate cover letter]).

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¹ In an “acquaintance”-level relationship, the “interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization” or if “they see each other primarily when socializing with mutual friends, but not otherwise” (Opinion 11-125). As we explained (id.):

Generally, neither will initiate social contact with the other, but they greet each other and interact cordially when they participate in common but not necessarily personally shared interests. In the Committee’s view, the mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality.

These standards also apply to a judge’s relationship with a party (see Opinion 14-04).

² Thus, we distinguish Opinion 14-189, where the judge “issued a written decision indicating the judge’s impartiality [was] 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” (emphasis added).