Opinion 23-89
September 7, 2023
Digest: A judge is not disqualified from presiding in a wrongful death and civil rights action arising out of an incident in a county facility, merely because the underlying events occurred while the judge was a county legislator who voted on the county budget. Under the circumstances, disclosure is entirely discretionary.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); Opinions 21-111; 19-156; 19-01; 18-131; 11-26; 10-190; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge, a former county legislator, has been assigned to preside in a wrongful death and civil rights action filed after a detainee died in a county holding center. The death occurred during the judge’s legislative tenure, although the notice of claim and action were filed after the judge’s service ended. The judge has no personal knowledge of any disputed evidentiary facts and is satisfied he/she can be fair and impartial. However, the judge did review and vote on the county budget as a legislator, including allocations for the sheriff’s office and county holding center. Given that the judge thus had some generalized involvement as a legislator in “providing funding for adequate staffing” at the county holding center,[1] the inquiring judge asks if it is ethically permissible to preside in the wrongful death and civil rights action.
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” (22 NYCRR 100.3[E][1]), including where “the judge has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]). 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]).
Initially, we note that the judge’s service as a county legislator had concluded by the time the notice of claim and action relating to the incident were filed against the county (see Opinion 21-111; cf. Opinions 19-01 [judge who previously served on the board of a public benefit corporation is disqualified “on all matters on which he/she was briefed or involved as a board member” but may otherwise preside in matters involving the entity, provided the judge can be fair and impartial]; 18-131 [town justice who was previously the Assistant Police Chief must not preside in cases where the arrests or summonses were issued during their former employment but may adjudicate new matters involving the police department provided the judge had no involvement in the matter and the judge can be fair and impartial]). Clearly, the judge was not – and could not have been – briefed on this particular litigation as a legislator.
We have said a judge need not disqualify from matters involving alleged violations of a municipal code promulgated while the judge served as a municipal legislator who voted on the code (see Opinions 19-156; 10-190). Likewise, a town justice who served on the town board and voted “on the initial appointment and subsequent annual reappointments of the town attorney” need not disqualify when the town attorney appears (Opinion 10-190). We also advised that a judge is not required to disqualify from a matter involving the constitutionality of a municipal ordinance solely because the same ordinance was in effect during the judge’s former employment as the municipality’s counsel (see Opinion 11-26).
In addition, we have advised that a judge previously employed by a county law enforcement agency, whose responsibilities included the implementation of a county-wide camera enforcement program for Vehicle and Traffic Law violations, need not disqualify when accusatory instruments from the camera enforcement program come before the judge’s court (see Opinion 21-111). Nonetheless, we cautioned the judge “to remain alert for circumstances where implementation of the program may become an issue in a proceeding before the judge” (id. [emphasis in original]), and also to remain alert for “any other circumstance where the judge may have ‘personal knowledge of disputed evidentiary facts’ relevant to the proceeding” (id., quoting 22 NYCRR 100.3[E][1][a][ii]).
While this judge should likewise “remain alert” for possible conflicts that may arise as the litigation progresses (Opinion 21-111), we conclude that the judge’s impartiality cannot “reasonably be questioned” on the facts presented (22 NYCRR 100.3[E][1] [emphasis added]). Indeed, nothing currently before us suggests that any decisions or acts of the county legislature in which the judge participated are likely to become an issue in the proceeding. Therefore, as the judge believes he/she can be fair and impartial, we conclude the judge need not disqualify from the wrongful death and civil rights action.
Disclosure of the judge’s former legislative service is left to the judge’s sole discretion and will not necessitate the judge’s disqualification, even if the parties object (cf. Opinion 19-01).
[1] The quotation is taken from a party’s description of their proposed trial subpoena of a different government official.