Opinion 21-02

January 28, 2021

Digest:         A judge who believes that the statutory obligation to provide a reason for discretionary recusal is unconstitutional may act in accordance with a legal determination made by the judge on the record, but may not conceal the true basis of the judge’s ruling.

Rules:          Judiciary Law §§ 9; 14; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1); 101.1; Opinions 19-19; 18-49; 14-34; 10-170/11-03; 09-137; 08-183/08-202/09-112; 07-102; Marbury v Madison, 5 US 137 (1803); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge disagrees with a newly enacted statute which purports to require judges to disclose their reasons for recusal, and asks if they may instead state “I am recused from this case and the reasons are not required by law.” Before delving further into the details of the inquiry, we will provide some background and context.

         Under Judiciary Law § 14, a judge is disqualified from any matter to which the judge is a party, in which the judge has been attorney or counsel, or in which the judge is interested; or when the judge is related by consanguinity or affinity to any party to the controversy within the sixth degree. Further, under the Rules Governing Judicial Conduct, a judge must disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned,” including in a number of specific instances set forth either directly in the rules or in our opinions (22 NYCRR 100.3[E][1]). In any other circumstance, recusal is a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]).

         Effective December 23, 2020, Judiciary Law § 9 requires that a judge disclose the reason for recusal in writing or on the record, except “when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”¹

         The inquiring judge believes that with respect to discretionary recusals not mandated by Judiciary Law § 14 or Section 100.3(E)(1), Judiciary Law § 9 is “more likely than not to be found unconstitutional because it violates the separation of powers doctrine.” Recognizing that they are nevertheless “required to follow it,” the judge proposes the following approach: “When I conclude that recusal is necessary, I plan to provide a writing or make a statement on the record as follows: ‘I am recused from this case and the reasons are not required by law.’ In this way, I do not defy the statute. I also do not contradict my view that the statute is unconstitutional and that it is contrary to the precedent that judges are the sole arbiter of their bases for recusal. Just as I should not be compelled to provide the reasons for recusal, I also should not be compelled to commit to the conclusion that my reasons will cause embarrassment or be of a personal nature to me or to someone to whom I am related.” The judge asks whether this proposed course of action comports with judicial ethics.

         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 respect and comply with the law (see id.) and must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]).

         Because we have no authority to address legal questions (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; Opinions 10-170/11-03; 09-137), we take no position on the constitutionality of the statute at issue.

         As a general matter, however, a judge who acts in reliance on a good-faith legal interpretation necessarily acts ethically, even if the judge’s legal interpretation is later determined to be incorrect or reversed on appeal. Thus, in Opinion 18-49, we advised that a judge who makes a good-faith legal determination concerning their legal authority to act on certain declarations of delinquency from the probation department necessarily acts ethically. Similarly, in Opinion 19-19, we advised that if a judicial candidate determines that they are legally permitted to repay their personal loan after the election, it is ethically permissible for the candidate to use their remaining unexpended campaign funds, raised before Election Day, to do so. In Opinion 09-137, we advised that a judge who directs a pretrial conference based upon controlling statutory language per se acts ethically, even if an appellate court later reverses on the ground that the judge’s statutory interpretation was erroneous. And in Opinion 14-34, noting the inherent power of a judge “to interpret the appropriate provisions of governing law (see generally Marbury v Madison, 5 US 137, 177 [1803] [‘It is emphatically the province and duty of the judicial department to say what the law is’]),” we advised that where a judge has made a good-faith interpretation of governing law concerning the appointment of counsel for indigent defendants, it would be inappropriate for the judge to defer to an inconsistent legal interpretation offered by another branch of government which would require the judge to participate in conduct the judge had concluded was unlawful.

         Here, however, the inquirer has made no definitive determination that the statute is unconstitutional; the judge opines merely that it is “more likely than not” to prove so if challenged. Indeed, and more fundamentally, the judge’s proposed course of action is inconsistent with a determination that the statute is unconstitutional. The statute on its face requires a judge to provide a reason for recusal except where doing so may result in embarrassment to or is of a personal nature affecting certain specified persons. When the exception applies, no obligation to supply a reason exists. The inquirer, however, wishes to provide a reason for failing to supply a reason, even when the exception applies and the judge need not disclose the reason. Thus, rather than acting in reliance on a good-faith legal interpretation that the statute is unconstitutional, the judge wishes, in essence, to register a protest to the statute in the guise of purporting to follow it.

         If the judge believes the statute is unconstitutional and cannot be enforced, it is unclear why the judge also believes they are “required to follow it” and must not “defy the statute.” Significantly, the judge is not proposing to issue a ruling that the statute is unconstitutional; the judge instead proposes to lodge an objection by asserting that “I am recused from this case and the reasons are not required by law” – both when the reasons are not required by law because the law, as written, does not require them, and when, in the judge’s view, the reasons are not required by law because the statute is unconstitutional so that no reasons are ever required by law.

         We are not unsympathetic to the judge’s concerns that the statute, as written, may place judges in uncomfortable positions. We note, for example, that the single statutory exception to the new disclosure requirement does not appear to include public embarrassment of an attorney the judge referred for a confidential disciplinary investigation (compare Opinion 08-183/08-202/09-112 [judge may not disclose that the basis for disqualification in a matter is that the judge reported an attorney to the grievance committee, unless the attorney waives confidentiality or the complaint results in public discipline]).

         But to the extent the inquiring judge seeks our imprimatur to be able to lodge a protest, immunized from review, we decline to give it (cf. Opinion 14-34 [“any questions concerning the correctness of the judge’s interpretation of the law, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” [internal quotation marks and citation omitted]). If the judge determines the statute is unconstitutional, we believe it would be improper for them to avoid review of the determination by concealing its true basis.

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¹ We previously declined to impose such a requirement as a matter of ethics, noting that while the usual practice of disclosure helps “promote the public’s confidence” in the judiciary’s integrity and impartiality, “a blanket rule requiring judges to disclose their reasons for recusal in all situations is inadvisable, unnecessary, and counterproductive” due to its likely “chilling effect” on a judge’s willingness to recuse where appropriate (Opinion 07-102).