Opinion 22-114

September 8, 2022

Digest:       A judge may serve as the “on-call” judge for a general election when the judge’s law clerk is on the ballot, but the law clerk may not assist the judge with any election-related matters.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinion 16-133; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s law clerk is seeking elective public office and will be on the ballot for the general election. The judge asks if they may serve as the “on-call judge” for the same general election “to consider allowing later registration of prospective voters” and, if so, whether they may permit the law clerk to assist with these election-related matters. The judge has clarified that these matters will not relate to individual races or candidates, but instead will relate to a voter’s overall registration/eligibility (e.g. whether the voter should be provided with a provisional ballot).

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).

         Here, the judge would not be presiding in matters relating to individual races or candidates, such as petition challenges, demands for a recount of election ballots, or other matters directly affecting the candidacy of the judge’s law clerk or the law clerk’s election opponent(s). Rather, the judge would be called upon to assess only voter eligibility and registration status to determine whether provisional ballots may be issued. In our view, the judge’s impartiality cannot “reasonably be questioned” in such matters (22 NYCRR 100.3[E][1] [emphasis added]), merely because the judge’s law clerk is on the ballot. Accordingly, the judge may preside if they can be fair and impartial, a matter which rests completely within the judge’s discretion and personal conscience.

         However, we believe the judge must insulate the law clerk from these election matters to avoid any possible appearance of impropriety (cf. Opinion 16-133 [judge may preside in matters involving an attorney who hosted a campaign fund-raiser for the judge’s law clerk, but must insulate the law clerk]).