Opinion 19-78

June 20, 2019

Please Note: Although this opinion uses the term “nominating petition,” the same principles also apply to designating petitions and opportunity to ballot petitions.

Digest:         A judge need not disqualify when an attorney appearing before the judge was the judge’s election opponent in a now-concluded political campaign, during which the candidates challenged the sufficiency of each other’s nominating petitions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 16-24; 16-11;07-206; 90-136.

Opinion:

         The inquiring judge asks if he/she may preside over a matter in which the judge’s recent election opponent appears as an attorney. During the election campaign, the opponent commenced Election Law litigation against the judge challenging the sufficiency of nominating petitions for a certain ballot line, and the judge interposed a counterclaim challenging the sufficiency of the opponent’s nominating petitions. The litigation was concluded before the election.

         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 in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 90-136, we advised that, as long as the judge believes he/she can be impartial, disqualification is not necessary when the judge’s opponent in a previous election appears before the judge as an attorney, unless, on the particular facts, the judge’s impartiality “might reasonably be questioned.” In deciding whether his/her impartiality might reasonably be questioned, the judge should consider “the time elapsed, the bitterness of the campaign, and the personal quality of the campaign” (id.).

         Here, we believe the filing of litigation challenging nominating petitions, a common circumstance in contested election campaigns, does not by itself establish the level of “bitterness” in a campaign mandating disqualification. It thus remains for the judge to “decide for himself or herself” (Opinion 90-136) whether, in light of the litigation or other circumstances touching upon the bitterness or personal quality of the campaign, his/her impartiality might reasonably be questioned.¹

_____________________________

¹ As a reminder, outside the election context, a judge may need to disclose or disqualify for two years in matters involving a former party-opponent in some circumstances (see e.g. Opinions 16-24; 16-11; 07-206).