Joint Opinion 13-51/13-169

December 12, 2013

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 judge is disqualified, subject to remittal where available, from presiding over matters involving a governmental entity that administers the judge’s tenant’s rent subsidy. However, the judge is not disqualified for that reason when other municipal departments appear in the judge’s court.

Rules:           42 USC §1437f; 24 CFR Part 982; Judiciary Law §14; 22 NYCRR 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100.3(F); 100.4(D)(2); 100.4(D)(4); Opinions 11-64; 09-138; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The full-time judge in Inquiry 13-51 owns a residential apartment building through a single member limited liability company. One of the judge’s tenants receives a “Section 8" rent subsidy administered by a governmental entity that appears frequently in the judge’s court. The Committee understands that participation in the “Section 8” rent subsidy program imposes certain rights and obligations on the landlord, the tenant, and the governmental entity that administers the rent subsidy (see 42 USC §1437f). Of particular significance here, the governmental entity must inspect the judge’s property according to governing law, and the judge, as the landlord, must respond in specified ways if violations are found (see 24 CFR Part 982).¹ The judge asks whether he/she may preside over matters in which the governmental entity appears before him/her.

         A judge must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and, therefore, must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). A judge may hold and manage his/her own investments, including real estate (see 22 NYCRR 100.4[D][2]), but must manage his/her investments and other financial interests to minimize the number of cases in which he/she is disqualified (see 22 NYCRR 100.4[D][4]).

         There are two initial objective questions to consider when determining if disqualification is required. The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of those enumerated circumstances apply, the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         Applying these principles to the present inquiry, the Committee believes the circumstances described create an objectively reasonable basis to question the judge’s impartiality in matters where the governmental entity that administers the judge’s tenant’s rent subsidy appears (see 22 NYCRR 100.3[E][1]), because the rent subsidy program gives the governmental entity the power, and obligation, to inspect the judge’s real property and identify violations that must be addressed.

         Therefore, the judge must disqualify him/herself from presiding over matters in which the governmental entity that administers the tenant’s rent subsidy appears before the judge. This disqualification is subject to remittal after full disclosure on the record, provided that no party is appearing without counsel (see Opinion 09-138).²

         In Inquiry 13-169, the judge further asks whether he/she is also disqualified from presiding when other departments of the same municipality, such as animal control, building, corporation counsel and police, appear before him/her.

         In the Committee’s view, the judge’s impartiality cannot reasonably be questioned should he/she preside when such other municipal departments appear in the judge’s court because they are not involved in administering the rent subsidy program and, therefore, do not have the same power and obligation to affect the judge’s real property. Consequently, the judge need not disqualify him/herself from matters involving other municipal departments unless some relevant, additional factor in a particular case could cause the judge’s impartiality to reasonably be questioned.

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     ¹ See e.g. US Department of Housing and Urban Development, Housing Inspection Manual, ch. 10 (“Housing Quality Standards”) www.hud.gov/offices/adm/hudclips/guidebooks/7420.10G/7420g10GUID.pdf <visited 8/28/2013>; NYC Housing Authority, “Inspection Standards” www.nyc.gov/html/nycha/downloads/pdf/lh_inspection_standards.pdf <visited 8/28/2013>.

     ² Remittal is a three-step process: “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” (Opinion 09-138, relying on 22 NYCRR 100.3[F]).