Opinion 03-11

March 6, 2003

Digest:                        An appellate court justice need not recuse him/herself nor make disclosure in cases in which a hospital which employs the judge’s son as a faculty member and as chief of a division, is a party, provided that neither the son nor the division was involved in the case on appeal.

Rule:                           22 NYCRR 100.3 (E)(1)(d)(iii); Opinion 93-104 (Vol. XI).

Opinion:

            The son of an appellate court justice has been appointed to the faculty at a teaching hospital and as chief of one of its divisions. The court on which the justice sits hears appeals in which, from time to time, the hospital is a party.

            The judge acknowledges that disqualification would be mandatory in any case where the son has any direct involvement. Nevertheless, the judge asks whether there should be disclosure or recusal in cases where the son has had no personal involvement in the events involved in the case on appeal.

            Section 100.3(E)(1)(d)(iii) of the Rules Governing Judicial Conduct provides:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to instances where . . . the judge knows that the judge or the judge’s spouse or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person . . . (iii) has an interest that could be substantially by the proceeding.

            The Committee is of the opinion that under the circumstances described neither recusal nor disclosure are required. For example, in Opinion 93-104 (Vol. XI) the Committee concluded that an Acting County Court judge could preside in cases investigated by the County Sheriff’s Department in which the judge’s son, an officer of the department did not personally participate. We are of the view that the inquiry raises the same considerations and likewise conclude that a policy of a blanket recusal or disclosure is not required. We note, however, that the judge’s son is not only a faculty member, but is also the head of a division of the hospital. Thus, there may be situations in which the case involves the division itself. In such instances, even though the son may not have any direct personal involvement in the particular matter, recusal should be considered.