Opinion 11-34

April 28, 2011

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 Court of Claims judge whose close relative was injured in a collision with an official vehicle driven by a New York State Trooper must disqualify him/herself, subject to remittal, from other cases involving claims that a State Trooper drove his/her official vehicle in a negligent manner, beginning when the judge’s relative files a notice of claim and continuing for the duration of the judge’s close relative’s claim against the State of New York.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(i), (d)(i); 100.3(F); Opinion 10-168; 09-138; 07-206; 04-66.

Opinion:

         A Court of Claims judge advises that his/her close relative was injured in a collision with an official vehicle driven by a New York State Trooper (State Trooper). The judge was not involved in the accident. Because the judge’s close relative may file a notice of claim against the State of New York, the judge asks whether he/she may preside, or continue to preside, in cases involving claims against State Troopers, including the remainder of a bifurcated trial of a claim involving a pedestrian who was struck and killed by an on-duty State Trooper. The judge already has determined the respective parties’ liabilities and currently has a trial scheduled to assess damages. However, the judge does not anticipate rendering a decision before the date when the judge’s close relative must file a notice of claim. The judge advises that the civil claims in which he/she presides are always bench trials and that jury trials are not available.

         A judge must avoid even the appearance of impropriety (see22 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 not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). Such disqualification is subject to remittal (see 22 NYCRR 100.3[F]), subject to certain exceptions including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]) or where the judge is related to a party to the proceeding within the sixth degree of relationship (see 22 NYCRR 100.3[E][1][d][i]). Also, remittal is not permitted when a party appears without counsel (see Opinion 09-138).

         The Committee previously has advised that a judge who is the plaintiff in a civil action must disqualify him/herself when the defendant in that action appears in the judge’s court in other unrelated cases (see Opinions 07-206; 04-66). The Committee also has previously advised that a judge whose spouse has retained counsel and is considering filing a claim against a municipality for personal injuries the judge witnessed need not disqualify him/herself from matters in which the municipality is a party unless and until his/her spouse files the notice of claim. The judge must then exercise disqualification from such matters from the date the notice of claim is filed until the judge’s spouse’s matter against the municipality is concluded, subject to remittal (see Opinion 10-168). The Committee further advised that for a period of two years after the matter is concluded, when the same defendant municipality appears before the judge, assuming the judge believes he/she can be fair and impartial, the judge must fully disclose that his/her spouse brought a personal injury claim against the municipality (see id.). If a party objects to the judge presiding, the judge must exercise his/her discretion to determine whether disqualification is warranted (see id.).

         The Committee finds it significant that the inquiring judge presides in the Court of Claims, where the State of New York is always the defendant, the judge is always the trier of fact and the parties have no choice but to commence their action in the Court of Claims. Given these circumstances, the judge’s impartiality might reasonably be questioned should the judge preside in other cases involving claims that a State Trooper drove his/her official vehicle in a negligent manner while, at the same time, the judge’s close relative is seeking to recover on a similar claim (see 22 NYCRR 100.3[E][1]). Therefore, the judge must disqualify him/herself from any such cases once the judge’s close relative files a notice of claim and as long as any resultant action is pending (see id.; Opinions 10-168; 07-206; 04-66). However, disqualification for this reason is subject to remittal (see 22 NYCRR 100.3[F]) as long as all parties who have appeared and not defaulted are represented by counsel (see Opinion 09-1384). In addition, the judge must, for two years after the civil claim is concluded, fully disclose that his/her close relative commenced an action against a State Trooper in other, unrelated cases involving a State Trooper’s negligent operation of an official vehicle (see Opinion 10-168). After making such disclosure, if a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether disqualification is warranted (see id.).

         Applying these principles to the specific pending matter the judge described, the Committee believes the judge also must disqualify him/herself from the currently pending bifurcated trial involving a pedestrian who was struck and killed by an on-duty State Trooper (see 22 NYCRR 100.3[E][1]; Opinions 10-168; 07-206; 04-66). This disqualification is likewise subject to remittal, as long as no party is appearing without representation by counsel (see 22 NYCRR 100.3[F]; Opinion 09-138).

         It is also the Committee’s view that the judge’s impartiality might reasonably be questioned should the judge preside over a matter in which the Assistant Attorney General in charge of defending against the judge’s close relative’s civil claim appears while such claim is pending. If this occurs, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1]). However, disqualification for this reason also is subject to remittal (see 22 NYCRR 100.3[F]) as long as all parties who have appeared and not defaulted are represented by counsel (see Opinion 09-138). Once the judge’s close relative’s civil claim is concluded, for a period of two years the judge must fully disclose that his/her relative filed the claim and the nature of the claim when the Assistant Attorney General in charge of defending that claim appears in unrelated matters (see Opinion 10-168). After making such disclosure, if a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether disqualification is warranted (see id.).