January 03, 2019

Recusal and the Rule of Necessity

Recusal and the Rule of Necessity
Center for Jud. Accountability, Inc. v Cuomo, 2018 NY Slip Op 08996, Appellate Division, Third Department

Elena Ruth Sassower, Individually and as Director of the Center for Judicial Accountability, Inc., [Center], appealed a judgment of the Supreme Court Justice Denise A. Hartman which, among other things, granted the State of New York's motion for summary judgment. Center had challenged certain provisions in a bill establishing the budgets for the State Legislature and the State's Judiciary for the 2016-2017 fiscal year.

Among the several issues addressed by the Appellate Division was Center's contention that Supreme Court erred by denying its motion for recusal, arguing Justice Hartman "has a pecuniary interest in this action because Justice Hartman is paid in accordance with the salary schedule that is being challenged." Noting that recusal is warranted when a judge has an interest in the litigation, the Appellate Division said that "the Rule of Necessity* provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot be otherwise heard." The court said that "self-interest inherent in adjudicating a dispute involving judicial compensation" otherwise provides grounds for disqualifying not only Justice Hartman, but every judge who might replace her. Accordingly, the Rule of Necessity permitted Justice Hartman to decide this action on the merits.

Further, opined the Appellate Division, Justice Hartman was not required to recuse herself for any other reason, explaining that "Absent a legal disqualification under Judiciary Law §14, which is not at issue here, a trial judge is the sole arbiter of recusal[,] and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion." Perceiving "no abuse of discretion here," the court held that Justice Hartman's prior employment by the Attorney General's office does not mandate recusal.**

Other decision addressing "recusal" include the following:

● A board member’s involvement in the disciplinary process does not automatically require recusal of that individual [Birch v County of Madison, 123 AD3d 1324]

● Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary" [see Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714].

In Opinions of the Attorney General, 92 Informal 61, the Attorney General, when asked how a member of a city council should conduct himself or herself, the opinion notes that "public officers have responsibility to exercise their official duties solely in the public interest [and] should avoid circumstances which compromise their ability to make impartial judgments." Further, public officers must avoid the appearance of impropriety in order to maintain public confidence in government.

** A court need not address, in its decision, every argument raised by a party, and "a ruling that is not to a litigant's liking does not demonstrate either bias or misconduct." In addition, noted the Appellate Division, "the Attorney General's office was not required to address every argument made by [Center] under our adversarial system" as each party is permitted to make the arguments believed most favorable to his or her or its position.

The decision is posted on the Internet at: