Opinion 11-149

January 26, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A Family Court judge is disqualified, subject to remittal, from any PINS petition filed by or on behalf of a high school where the principal is the judge’s personal friend and the judge’s spouse is a teacher.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 11-152(A); 09-138; 91-56 (Vol. VII); 88-105 (Vol. II); Joint Opinion 07-114/07-120; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A Family Court judge whose household has personal, professional and educational connections with a local high school asks whether he/she may preside in matters where the local school district files a Persons in Need of Supervision (PINS) petition under Article 7 of the Family Court Act. The judge advises that, typically, an assistant principal of the middle or high school files PINS petitions on the school district’s behalf, but occasionally the principal of the middle school or high school will be named as petitioner. The judge states that he/she is a personal friend of the high school principal, that the judge’s spouse teaches at the high school, and that the judge’s children attend the high school. It appears that neither the judge nor other members of the judge’s household have any such connections with the middle school.

         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]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). Except as otherwise provided in §100.3(E)(1) of the Rules Governing Judicial Conduct, disqualification is subject to remittal (see 22 NYCRR 100.3[F]).

         The Committee has advised that a judge “is disqualified from presiding over a trial in the event that the judge’s spouse’s employer is a party to the proceeding,” subject to remittal (Opinion 91-56 [Vol. VII]; see also Opinion 88-105 [Vol. II]). However, remittal is not available if any party is proceeding pro se (see Joint Opinion 07-114/07-120). Remittal involves three-steps (Opinion 09-138 relying on 22 NYCRR 100.3[F]; see also Opinion 11-152[A]):

First, the judge must fully disclose the basis for disqualification on the record... Second, ... without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

         Similarly, the inquiring judge should disqualify him/herself, subject to remittal (unless a party appears without representation, in which case the judge must exercise recusal), on any PINS petition filed by or on behalf of the high school where the high school principal is the judge’s personal friend and the judge’s spouse is a teacher. However, the judge need not disclose or disqualify him/herself from PINS petitions that the principal or assistant principal of the middle school files.