Opinion 15-39

March 19, 2015

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 who knows that the probation department is likely to refer defendants who are convicted of crimes involving domestic violence charges to a program run by the judge’s social worker spouse is disqualified, subject to remittal, from presiding in criminal matters involving domestic violence charges.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.3(F); Opinions 14-36; 10-124; 09-138; 04-124; 04-101.

Opinion:

         A judge who regularly presides in criminal cases, but does not regularly sit in the separate domestic violence part of the same court, asks if he/she may preside in cases which may potentially involve the judge’s spouse. The inquiring judge’s spouse is a social worker who owns and operates a private practice that addresses domestic violence issues. The local probation department intends to start making referrals to the judge’s spouse’s rehabilitative “batterers’ program,” if there are a sufficient number of eligible defendants. The judge states that his/her spouse would run this program “from the Probation Department offices,” but would not be a probation department employee. The judge’s spouse’s fees would be paid by the participating defendants, rather than the probation department.

         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]). Among other things, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) or lend the prestige of judicial office to advance another’s private interests (see 22 NYCRR 100.2[C]). Judges must disqualify themselves from proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where the judge knows that “the judge’s spouse ... is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]) or that the judge’s spouse has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

         In the instant inquiry, the inquiring judge’s spouse will have a financial interest, not only in the number of defendants referred to the batterers’ program, but also in the success of the program and even the number of defendants to be evaluated for potential referral to the program. Although it would be the probation department, rather than the judge, actually making the referrals, it could create an appearance of impropriety for the judge to preside over criminal domestic violence charges, knowing that a conviction would likely result in a referral to the judge’s spouse and a concomitant fee (see 22 NYCRR 100.2; 100.3[E][1][c]; 100.3[E][1][d][iii]; cf. Opinions 10-124; 04-124 [“The incompatibility is not cured by not sentencing defendants to this particular program since it deprives [them] of an option that would otherwise be available”]; 04-101). As a practical matter, the Committee also notes that the inquiring judge’s spouse’s involvement in any domestic violence case is not likely to be discernable until after guilt has been determined.

         Therefore, under all these circumstances, the inquiring judge should disqualify him/herself in all criminal cases involving domestic violence charges. The Committee notes this obligation applies as soon as a criminal case involving domestic violence charges is before the judge; indeed, the judge may not conduct an arraignment in such matters (see, e.g., Opinion 14-36).

         Disqualification on this ground is subject to remittal, unless a party appears without counsel. Where available, 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 (see Opinion 09-138; 22 NYCRR 100.3[F]).