Opinion 20-163

October 29, 2020

Digest:    1) Provided the Surrogate can be fair and impartial, they need not disqualify in matters involving the Public Administrator’s office merely because (a) they relieved the PA of certain duties and (b) the PA thereafter commenced an Article 78 proceeding and filed complaints with an anti-discrimination agency and the Commission on Judicial Conduct. (2) The Surrogate need not disqualify while the Commission is investigating the PA’s complaint, but if the Commission formally charges the Surrogate with misconduct in a formal written complaint, the Surrogate must disqualify from matters involving the PA’s office.


Rules:     22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(a)-(f); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 17-17; 16-141; 16-129; 15-218; 13-41; 12-94; 98-69; 97-102; People v Moreno, 70 NY2d 403 (1987).



         The inquiring Surrogate relieved the Public Administrator of certain duties and directed another person to assume those duties; as a result, the PA will no longer personally appear before the judge. The PA has commenced an Article 78 proceeding against the judge, accused them of unlawful discrimination before a state agency, and filed a complaint with the Commission on Judicial Conduct. The Commission asked the judge for a written response to the allegations but has not issued a formal written complaint charging them with misconduct. The Surrogate asks if they are disqualified in matters involving the PA’s office while the proceedings or investigations are ongoing. The Surrogate also asks us to address their obligations should the Commission issue a formal written complaint.

         A judge must 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 where specifically required by rule or statute (see Judiciary Law §14; 22 NYCRR 100.3[E][1][a]-[f]), including when the judge has a personal bias or prejudice regarding a party (see 22 NYCRR 100.3[E][1][a][i]) or knows they have an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1] [d][iii]). Where no specific provision expressly disqualifies the judge, the judge still must consider whether their impartiality could nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). Where disqualification is not mandated under these objective tests, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and therefore may preside, unless they doubt their own impartiality in a specific matter.

         We have “issued many opinions concerning a judge’s obligations when disappointed litigants or attorneys mount collateral attacks on the judge and/or the judge’s judicial decisions, such as federal law suits, Article 78 proceedings, complaints to the Commission on Judicial Conduct or other government agencies” (Opinion 15-218 [discussing prior opinions]), even when they accuse the judge of federal civil rights violations or criminal activity (see Opinion 98-69). Where, as here, the complaints pending against the judge are directed at the judge’s official role and there is no link to the judge’s personal financial interests, disqualification is discretionary, and the judge need not disqualify if they determine they can be fair and impartial. “Indeed, any rule requiring automatic recusal under such circumstances could enable disgruntled litigants to engage in ‘judge shopping’” (id. [citation omitted]). Accordingly, as this Surrogate has determined that they can be impartial, they need not disqualify in cases involving the PA or members of the PA’s office at this time, merely because the PA has commenced an article 78 proceeding and an administrative proceeding accusing the judge of discrimination (see Opinions 16-129; 15-218; 13-41; 12-94; 98-69).

         Likewise, disqualification is not required merely because the Commission on Judicial Conduct is actively investigating the PA’s disciplinary complaint at this time (see Opinion 17-17). However, we note the Surrogate’s obligations may change in the future depending on the Commission’s actions. A bright line is drawn at the point where the Commission progresses from the investigative stage and determines that the facts alleged warrant issuance of a formal written complaint against the judge which the Commission can then prosecute. Once served with the Commission’s complaint, the judge must disqualify him/herself in matters involving the original complainant and their subordinates (see Opinion 16-141). Therefore, the Surrogate need not disqualify from matters involving the PA’s office unless the Commission issues a formal written complaint, but should that occur, the Surrogate must disqualify in all such matters. (see Opinions 16-141; 16-129; 97-102).