Opinion 22-153

October 27, 2022

Digest:         (1) A judge need not recuse from a small claims case merely because they might potentially learn about another judge’s possible legal, procedural and/or ethical missteps in another case. (2) The inquiring judge is in the best position to determine whether they have received information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct and, if so, what action is appropriate under the circumstances. (3) We cannot respond to questions about past conduct, legal issues, conduct of another judge, or interpretation of another judge’s decisions/rulings.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(1); 100.3(D)(1); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 22-45; 21-10; 19-78; 18-139; 18-66; 17-64; 15-138/15-144/15-166; 09-32; 91-146; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring village justice has reviewed small claims cases that were filed in the village court as a result of a code enforcement action in a nearby town. The defendant in now-concluded code enforcement proceedings has sued certain town officials and employees alleging harassment and discriminatory enforcement of the town code. Based on the allegations in the small claims complaints, the inquiring village justice questions whether the town judge’s actions in the code enforcement matter were legally, procedurally and/or ethically proper. The village justice asks several questions about this situation, which we address below.

1. Disqualification

         The village justice first asks if they must recuse from the small claims matters. Although the town judge is not a party to these matters, the village justice is concerned that “hearing the case would cause me to ask clarifying questions which would cause me to possibly find out other information” concerning the town judge’s conduct in the code enforcement matter.

         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 statutorily required circumstances (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]). Conversely, if disqualification is not mandatory under objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         As presented here, the inquiring judge’s speculation that they “might find out other information” about another judge’s potential legal, procedural and/or ethical missteps does not necessitate recusal.

         The judge’s inquiry reveals no other obvious basis for recusal, other than the fact that the inquiring judge and town judge were once political adversaries. That fact also does not automatically require recusal (see e.g. Opinions 19-78; 91-146). Of course, where recusal is left to a judge’s discretion, the judge is necessarily acting in a judicial capacity in searching their conscience as to whether they can be fair and impartial in a particular case. Hence, the judge must “not be swayed by partisan interests” (22 NYCRR 100.3[B][1]) or other impermissible considerations such as “family, social, political or other relationships” (22 NYCRR 100.2[B]).

2. Disciplinary Obligations

         Next, the village justice asks if they must report the town justice to the Commission on Judicial Conduct.

         A judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]). As we advised in Opinion 18-66 (citations omitted):

A judge is not required to conduct an investigation of alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If the judge concludes that either of the two elements is missing, the judge need not take any action. If a judge concludes that there is a “substantial likelihood” that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority. By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.

         Here, the judge’s sole basis of knowledge consists of allegations made by a litigant in certain small claims actions. The judge does not appear to have first-hand knowledge, any corroborating accounts, or other information to substantiate the litigant’s claims. Thus, the issue is whether the judge has received information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules. On these facts, we conclude that it remains entirely within the inquiring judge’s discretion to make that determination (see e.g. Opinion 15-138/15-144/15-166 [noting the judge’s discretion is “particularly wide” where the judge has “no direct personal knowledge whatsoever” about the alleged misconduct]). Moreover, even if the inquiring judge concludes that both prongs are met, the judge has full discretion as to what steps to take concerning the town judge’s conduct.

3. Propriety of Another Judge’s Conduct

         Finally, the village justice asks if the other judge acted in accordance with applicable law and managed the courtroom appropriately. We are unable to respond to these inquiries, as we cannot comment on past conduct (see Opinions 21-10; 17-64), legal questions (see Opinion 22-45), or another judge’s conduct (see Opinions 18-139; 09-32). If the village justice is unsure whether the town code proceeding is concluded, interpretation of the town judge’s decisions or rulings is likewise a legal question beyond our jurisdiction.