Opinion 15-46

March 19, 2015

Digest:         A judge, whose real estate purchase contract recently terminated by its terms without a resulting sale, may preside in search warrant applications in which the prospective seller appears, absent any other disqualifying factor and assuming the judge 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)-(f); 100.4(D)(1)(a)-(c); Opinions 12-107; 09-97; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states that he/she entered into a contract to purchase real property from an owner who is also a police officer, and thereafter disqualified him/herself from the police officer’s search warrant applications based solely on the contemplated transaction.¹ Recently, the contract terminated without a purchase, due to the failure of a contingency provision apparently outside either party’s control. The judge advises that the contract’s termination was routine, unaccompanied by rancor or ill-will on either side. Accordingly, the judge asks if he/she may now decide the officer’s search warrant applications.

         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]). Thus, a judge must not engage in financial or business dealings that (1) may reasonably be perceived to exploit the judge’s judicial position; (2) involve the judge with any business, organization, or activity that ordinarily will come before the judge; or (3) involve the judge in frequent transactions or continuing business relationships with those lawyers and other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][1][a]-[c]). Furthermore, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, if disqualification is not mandated under these objective criteria, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         In Opinion 12-107, the Committee observed that:

Judges, in their capacities as private citizens, routinely engage in countless everyday purchases as well as negotiations for more expensive items such as a residence, a vehicle, or loans to finance such purchases. Such routine transactions do not ordinarily require a judge’s disqualification. Moreover, although the Committee expects that judges will not allude to their judicial status in their business transactions, the Committee recognizes that others may nonetheless be aware of this status. The Committee emphasizes that a routine business transaction, or even an arms’-length business negotiation, is not rendered suspect merely because the seller manifests awareness that the purchaser is a judge [citations omitted].

         In Opinion 12-107, when a support magistrate responded to an anonymous advertisement offering to sell an expensive leisure item, the seller recognized the support magistrate’s name and spontaneously indicated that “[he/she] was grateful to” the support magistrate for a decision the support magistrate had previously issued. Although the Committee concluded it was permissible for the support magistrate to go forward with purchase negotiations, the Committee nonetheless advised that “[b]ecause this is an expensive item that will require personal negotiations with an individual who spontaneously expressed gratitude for the support magistrate’s prior decision, the support magistrate is disqualified from matters in which the seller appears for two years following the date of the purchase” (Opinion 12-107).

         Here, by contrast, the contemplated one-time real estate transaction has been completely resolved with no remaining contractual or financial obligation between the judge and officer; nor any indication the contemplated transaction was anything other than a routine arms’-length real estate transaction between a prospective seller and a prospective buyer. Accordingly, the Committee concludes that the judge’s impartiality cannot reasonably be questioned based only on the failed realty matter (see 22 NYCRR 100.3[E][1]; Opinion 12-107); and no specific Rule or Judiciary Law appears to require disqualification on these facts (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

         Thus, the judge may hear search warrant applications involving the prospective seller absent any other disqualifying factor; and provided the judge concludes he/she can be fair and impartial, a matter confined to the judge’s sole discretion (see People v Moreno, 70 NY2d 403 [1987]).

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         ¹ Because an application for a search warrant is an ex parte proceeding, remittal of a judge’s disqualification is not permitted (see Opinion 09-97).