Opinion 14-81

June 12, 2014

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         Neither disqualification nor disclosure is required solely because a party appearing before the judge is the judge’s judicial colleague’s spouse.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 12-154; 11-125; 11-124; 11-64; 92-111 (Vol. X): People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time judge asks whether he/she may preside in a particular case, where one of the litigants is the spouse of another full-time judge who presides in the same court. The inquiring judge knows his/her judicial colleague professionally, but states they do not have a social relationship outside of work. The judge explains their “primary interaction” is at “various Court functions” they both attend, and the inquiring judge’s sole contact with the litigant/spouse occurs approximately once a year at an annual social event held in the other full-time judge’s chambers. Although the inquiring judge proposes to make full disclosure to the parties and their attorneys and permit them to “raise any objection they may have” to the judge handling the case, the judge also emphasizes he/she can be fair and impartial, and “would not be influenced in any fashion by the fact that” a judicial colleague’s spouse is a litigant.

         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]). Therefore, a judge must 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 the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         The Committee has previously advised that judges within a judicial district may preside over cases in which an attorney who is married to the district administrative judge appears, even where the cases involve the resolution of “volatile” issues of great sensitivity and importance to the litigants involved (see Opinion 11-124). In reaching this conclusion, the Committee reasoned “the marital relationship of the inquiring judges’ district administrative judge is sufficiently remote from the inquiring judges that it does not, in and of itself, create any reasonable appearance of impropriety for them and thus neither disclosure nor disqualification is required” (id.).

         Applying similar principles, the Committee has also advised that a judge may hear matters involving the local police department, whose acting police chief is the inquiring judge’s co-judge’s child (see Opinion 92-111 [Vol. X]) and that a judge who serves on a two-judge court “need not disclose that an attorney appearing before him/her is a first-degree relative of the judge’s co-judge or disqualify him/herself, as the judge’s impartiality cannot reasonably be questioned solely on that basis” (Opinion 12-154). In Opinion 12-154, the Committee specifically noted that “it is the nature and quality of the relationship between any two judges in one court that is the determining factor in resolving any appearance issue” (id.). The Committee further suggested that if a judge “socialize[s] with a judicial colleague’s family,” the judge “should consider his/her relationship with the particular attorney relative who is appearing before him/her” using the principles of Opinion 11-125 (see Opinion 12-154 n.1).

         Here, the inquiring judge’s judicial colleague’s spouse is appearing as a litigant, rather than as an attorney (see Opinions 12-154; 11-124) or (presumably) as a witness or a witness’s supervisor (see Opinion 92-111 [Vol. X]). However, the Committee believes a judge’s impartiality cannot reasonably be questioned solely because a party appearing before the judge is the spouse of another judge who presides in the same court. Instead, the judge should consider his/her own relationship, if any, with the particular individual who is appearing before him/her as a party, using the general categories of social relationships set forth in Opinion 11-125 as a guide to the analysis (see Opinion 12-154).

         Under the circumstances presented, it appears the inquiring judge and his/her judicial colleague’s spouse are “acquaintances” within the meaning of Opinion 11-125.² Nor does the inquiry reveal any other connections between them that could conceivably create an appearance of impropriety. Accordingly, given the inquiring judge has stated he/she can be fair and impartial, the inquiring judge may preside over the case, and need not make any disclosures.

         The inquiring judge “may, of course, choose to disclose the relationship,” if he/she wishes to do so (Opinion 11-124). If so, such “purely prophylactic disclosure ... will not require the judge[’s] disqualification when a party is unrepresented. And, even if a party or counsel objects, the judge retains the discretion to preside under these circumstances” (id. [citations omitted]).

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     ¹ There are two objective tests to determine if disqualification is mandatory: 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]-[f]) or Judiciary Law §14. Where, as here, none of those enumerated circumstances applies, 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 the objective standards of those two questions, the judge “is the sole arbiter of recusal” (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).

     ² Indeed, even the relationship between the two colleagues may be little more than that of acquaintances under the facts presented.