March 19, 2020
Digest: A judge’s concern that the Public Defender will criticize and attack him/her personally and professionally does not necessitate recusal from matters involving the Public Defender’s office.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2(B)-(C); 100.3(A); 100.3(B)(1); 22 NYCRR 101.1; Opinions 19-35; 18-157; 17-13; 16-114; 15-218; 15-45; 07-186; 07-25; 92-75; 92-13; Laird v Tatum, 409 US 824 (1972); People v Moreno, 70 NY2d 403 (1987).
The inquiring town justice asks if he/she may ethically preside in any cases involving the Public Defender’s office, given the following circumstances:
In 2016, the attorney [who now heads the Public Defender’s office] attacked and impugned my credibility as a judge and the performance of my judicial duties and ever since, I have had no contact whatsoever with the attorney and requested the County Court to reassign and transfer [the attorney’s] cases to other courts.... I am confident this attorney will again attack me personally and the performance of my judicial duties if I make any ruling/decision [he/she] disagrees with.
The written inquiry states no other basis for disqualification, although it references an ongoing disagreement between the judge and the County Attorney concerning certain legal issues, which we cannot address (see Judiciary Law § 212[l]; 22 NYCRR 101.1; Opinions 19-35; 07-186).
A judge’s “specialized learning, experience and judicial discipline” renders him/her “uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 18-157 [citation and internal quotation marks omitted]; see also People v Moreno, 70 NY2d 403, 406 ). Indeed, because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge generally “has a duty to sit where not disqualified, which is as strong as the duty not to sit where disqualified” (Laird v Tatum, 409 US 824, 837 ; see also Opinions 07-25; 92-75). Where recusal is left to a judge’s discretion, the judge is necessarily acting in a judicial capacity in searching his/her conscience as to whether or not he/she can be fair and impartial in a particular case. Hence, he/she must “not be swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B]) or other impermissible considerations (see e.g. 22 NYCRR 100.2[C] [“advanc[ing] the private interests of the judge or others”]; 100.2[B] [“family, social, political or other relationships”]; see also Opinion 07-25).
The judge’s concern that the Public Defender will criticize and attack him/her personally and professionally does not necessitate recusal from matters involving the Public Defender’s office (see e.g. Opinions 15-218; 19-35). Indeed, the judge must “not be swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B]; see also Opinion 92-13 [a judge “must expect to be the subject of public scrutiny and, therefore, must accept criticism, however merciless, that might be viewed as opprobrious by the ordinary citizen”]).
As the judge’s written inquiry reveals no other basis for recusal, we decline to comment further, other than to note that a strictly social relationship (whether involving friendship or enmity) with one attorney is not imputed to other attorneys in the office, including that attorney’s subordinates (see e.g. Opinions 17-13; 16-114; 15-45).