Opinion 23-74
June 15, 2023
Digest: Provided the judge concludes he/she can be fair and impartial, the judge need not disqualify from a case merely because (a) the complainant is a long-time professional acquaintance of the judge and (b) the defendant has attempted to contact the judge ex parte, accused the judge of corruption and bigotry, threatened the judge’s career, and implicitly threatened the judge’s family. However, the judge should disclose on the record the substance of any threats of violence by the defendant that were received ex parte.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-76; 16-54; 11-125; 11-86; 08-170; 08-62; 05-78; 99-78; 92-40; People v Moreno, 70 NY2d 402 (1987).
Opinion:
The inquiring part-time attorney judge has been assigned two separate criminal cases involving charges of aggravated harassment against the same defendant. The inquiring judge knows both complainants professionally but does not socialize privately with either of them. One complainant is a part-time attorney judge in a nearby town. They have known each other for 20 years, and currently are representing opposing parties in a real estate transaction. The second complainant is a local political party chairperson who worked “very closely” with the judge in a prior campaign more than two years ago, but does not serve on the judge’s campaign committee or otherwise play any special role in the judge’s current unopposed campaign for re-election. The defendant recently attempted to send a barrage of “ugly” text messages to the judge.[1] These messages accuse the judge of corruption and bigotry, threaten the inquiring judge’s career, and include a photograph of the inquiring judge’s children when they were “much younger.” The judge is satisfied that he/she can be fair and impartial, but wishes to proceed with caution in light of the defendant’s apparent pattern or practice, clearly discernable from the case files, of initiating inappropriate contacts with judges and prosecutors and provoking their withdrawal or recusal. The judge asks, in essence, whether disqualification is ethically required on these facts.
A judge must always avoid even the appearance of impropriety and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), or in other specific circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Where disqualification is not ethically mandated by objective standards, the judge is the sole arbiter of recusal (cf. People v Moreno, 70 NY2d 402, 405 [1987] [“This discretionary decision is within the personal conscience of the court”]). A judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding,” unless an exception applies (22 NYCRR 100.3[B][6]).
With respect to the complainants, in our view, the inquiring judge’s impartiality cannot “reasonably be questioned” merely because a complainant is a town judge in a nearby town (see Opinion 16-54), an attorney whose client is adverse to the judge’s client in a real estate transaction (see Opinion 92-40), or a political party leader with no specific role in the judge’s campaign (see Opinion 19-76). Moreover, the judge’s social relationship with each complainant, as described, appears to be that of an “acquaintance” under Opinion 11-125. Accordingly, we conclude that neither disclosure nor disqualification is ethically required with respect to these complainants.
We have advised that a judge is not disqualified from presiding in a case merely because one party threatens the judge or the judge’s family, provided the judge can be fair and impartial, a determination ordinarily left to the judge’s sole discretion (see e.g. Opinions 11-86 [party made threatening statements toward judge and the judge’s family]; 08-170 [FBI found information about the judge on the computer of a defendant charged with possession of bombs; judge must disclose on the record but retains discretion to preside]; 05-78 [attorney said their client threatened to kill the judge and opposing counsel; judge must disclose on the record but retains discretion to preside]).
Indeed, we have adhered to this approach even in an inquiry where the litigant had gained access to private information about the judge’s family. In Opinion 99-78, the respondent in a custody proceeding obtained the telephone number and address of the judge’s mother and sister, and availed herself of that information several times.[2] The respondent subsequently “left a recorded message on her legal advisor's telephone answering machine wherein she threatened to ‘blow [the inquiring judge] off the bench’” (id.). These matters were alarming enough that court security personnel intervened and the district attorney pursued criminal harassment charges (id.). Considering all those factors, we concluded that disqualification was not ethically mandated on the information provided (see id.). We recognized potentially competing considerations both for and against disqualification—including “whether recusal might be deemed an encouragement for litigants to engage in extreme actions in order to secure the removal of a judge from a case” (id.)—and concluded the judge had the sole discretion to determine whether or not to preside.
Here, too, we conclude that the inquiring judge is not automatically disqualified merely because the defendant has attempted to contact the judge ex parte, accused the judge of corruption and bigotry, threatened the judge’s career, and implicitly threatened the judge’s family by forwarding a photograph of the judge’s children when they were younger. As this judge indicates that he/she has already searched his/her conscience and determined that he/she can be fair and impartial, we see no ethical impropriety in the judge presiding in the case.
As for the question of disclosure, we note that the judge became aware of these threatening messages through a series of attempted ex parte communications which were misdirected but were nonetheless shared with the judge. “Depending on the content, context, and circumstances of a case, a judge who receives an ex parte communication may be required to disclose its substance to all parties and attorneys” (Opinion 08-62 [citation omitted]). Here, consistent with prior opinions, we conclude the judge should disclose the substance of any threats of violence on the record (see Opinions 08-170; 05-78).