Joint Opinion 15-107/15-110

June 11, 2015

Digest:         A judge need not make any disclosure or disqualify him/herself from a criminal case solely because a co-judge’s spouse has served, or may serve, as a social worker for the defendant on referral by the probation department, provided the judge believes he/she can be fair and impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 11-64; 09-239; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         Each of the inquiring judges presides in a multi-judge court with another judge whose spouse is a social worker. Their co-judge’s spouse administers a domestic violence program which includes defendants referred by the local probation department. The inquiring judges ask for guidance on their ethical responsibilities in cases involving allegations of domestic violence where a defendant has been, or could be, referred to their co-judge’s spouse for evaluation and/or treatment.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in a matter where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         The Committee has previously advised that “the fact that a witness is a close relative of the inquiring justice’s co-judge does not, in and of itself, preclude the inquiring judge from determining the witness’s credibility, as long as the judge can be fair and impartial” (Opinion 09-239 [citations omitted]).

         Likewise, the inquiring judges’ knowledge that a criminal defendant who faces domestic violence charges has been or may be referred to a co-judge’s spouse for evaluation or treatment does not, without more, raise reasonable questions about their ability to be impartial in such matters, even if the co-judge’s spouse may be called as a witness in the case as a result of such referral (see id.).

         Accordingly, each inquiring 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 in that matter (see Opinion 11-64).

         The inquiring judges therefore need not disclose their co-judge’s spouse’s employment in criminal cases involving allegations of domestic violence, and may preside in such cases where their co-judge’s spouse has served, or may serve, as a social worker for a defendant on referral by the probation department, as long as they believe they can be fair and impartial.

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         ¹ Where, as here, the specific disqualifying circumstances set forth by rule or law do not apply (see 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14), the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).