The Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,400 judges, who serve both full- and part-time. The committee's opinions interpret the Rules Governing Judicial Conduct (22NYCRR, Part 100) and the Code of Judicial Conduct. The committee, comprised of 26 current and retired judges and headed by former Justice George D. Marlow, also answers inquiries about proper campaign conduct from candidates for elective judicial office. The New York Law Journal publishes selected recent opinions of the committee.
Digest: Under the circumstances presented, where a judge believes in good faith that certain municipal employees have deliberately sought to interfere with the judge's ability to perform his/her judicial duties and such alleged conduct has caused the judge to file a notice of claim against the municipality, the judge may continue to preside in matters involving the municipality, provided that the judge believes he/she can be fair and impartial in such matters. However, the judge is disqualified, subject to remittal, if one of the municipal employees identified in the notice of claim as allegedly engaging in offending conduct appears before the judge as a witness or an attorney. Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 10-168; 08-59; Joint Opinion 05-105/05-108/05-109; Opinions 04-66; 98-69 (Vol. XVII).
Opinion: The inquiring judge presides in a court with jurisdiction that is limited to cases involving violations of municipal laws and ordinances. The judge states that he/she has filed a notice of claim against the municipality where the judge presides based on the alleged conduct of a municipal officer and individuals the municipality employs. According to the judge, the individuals directed their conduct at the judge both in the judge's personal and professional capacities. Indeed, if the judge's version of events is proven, it raises the troubling possibility that a municipal officer and employees may have attempted to interfere with the judge's ability to perform his/her judicial duties in furtherance of a purely private vendetta. According to the judge, some of the individuals named in the notice of claim or persons subject to their supervision, appear regularly before the judge in their professional capacities. Specifically, they appear on behalf of the municipality in criminal or traffic matters. The judge indicates that since he/she filed the notice of claim, the municipal officer and municipal employees whose alleged conduct forms the basis for the notice of claim, including the municipality's attorney, have asked the judge to disqualify him/herself from all matters involving the municipality. The judge is nonetheless confident that he/she can be fair and impartial and, therefore, asks whether, under the circumstances presented, disqualification is required.
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]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Committee previously has advised that, to avoid even the appearance of impropriety, a judge who commences an action against a municipality should disqualify him/herself from matters involving the municipality, subject to remittal, during the pendency of the action (see e.g. Opinions 08-59 [judge as named plaintiff in declaratory action to enjoin municipality from making proposed change to court facilities]; 04-66 [judge as named plaintiff in small claims breach of contract action against municipality]; see also Opinion 10-168 [judge's spouse contemplating filing notice of claim against municipality]). However, the committee did note that disqualification in these circumstances is not directly mandated by a specific provision of the Rules Governing Judicial Conduct; that is, "a judge's impartiality is not necessarily subject to question when the judge is a party plaintiff…against the municipality when the municipality appears before the judge in unrelated matters" (Opinion 08-59 [emphasis added], relying on Opinion 04-66; see generally 22 NYCRR 100.3[E][a]-[f]).
The committee has also advised that a judge who believes he/she can be impartial is not required to disqualify him/herself where a litigant has (1) complained about the judge to the State Commission on Judicial Conduct, (2) commenced a federal civil rights lawsuit against the judge, and (3) filed a criminal complaint against the judge with the District Attorney's office (see Opinion 98-69 [Vol. XVII]). The committee explained that "any rule requiring automatic recusal under such circumstances could enable disgruntled litigants to engage in 'judge shopping'" (see id.).
As the committee has previously noted, it "cannot judge the credibility of…conflicting allegations and is not empowered to do so" (Joint Opinion 05-105/05-108/05-109). However, based on the present inquiry, it appears the judge believes the acts that caused the judge to file a notice of claim against the municipality were specifically intended to interfere with the judge's ability to perform his/her judicial duties, and perhaps even as a form of "judge shopping." On review of the notice of claim, it is clear that the judge's allegations do not concern the municipality's duties and obligations as they may arise in the context of cases filed in the judge's court. Rather, the essence of the judge's complaint is the municipality's liability for allegedly discriminatory practices in employment, based on the alleged conduct of certain municipal employees.1 Consequently, under these circumstances, if the inquiring judge believes in good faith that the alleged events occurred as he/she has described them and if the judge further believes that he/she can be fair and impartial in the matters involving the municipality that are filed in the judge's court, then the judge need not disqualify him/herself from all matters involving the municipality. Significantly, given the limited jurisdiction of the court in which the judge presides, requiring disqualification here on the facts presented would permit the alleged "bad actors" to effectively remove the judge from the bench. The committee cannot countenance a rule that would unnecessarily force the inquiring judge, and all similarly situated judges, to choose between seeking redress of legitimate wrongs and fulfilling the responsibilities of their judicial office.
The judge has explained that criminal and traffic matters in his/her court are typically prosecuted by private attorneys who are subject to the supervision of one of the named municipal employees. In the Committee's view, the judge is not required to disqualify him/herself and may preside over such matters when prosecuted by the private attorneys, as long as the judge believes he/she can be fair and impartial. However, during the pendency of the action, the judge must disqualify him/herself from matters in which the specific individuals named in the notice of claim as allegedly engaging in the offending conduct personally appear before the judge as attorneys or as witnesses.
1. The Committee notes that the conduct alleged in the Notice of Claim, if true, appears unlikely to be within the scope of official duties of the named municipal employees.