Opinion 15-59

March 19, 2015

Digest:         A part-time judge who also works for a financial institution need not disqualify him/herself when his/her non-judicial employer’s landlord appears in his/her court.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i)-(ii); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); Opinion 10-60; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time judge who works for a financial institution asks if he/she must disqualify him/herself in a criminal case involving an alleged theft from the financial institution’s landlord (a retail store in which the financial institution leases its space). The defendant claims that the judge “works for” the retail store because the judge’s workplace is physically located within space leased from the store, but the judge advises that neither the store nor the financial institution have any ownership or other interest in each other beyond the landlord/tenant relationship. There is no indication in the inquiry that the judge has any economic, personal or professional relationship with the store or its employees.¹ The judge believes he/she can be fair and impartial.

         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 disqualify him/herself in a proceeding in which the judge’s impartiality might be reasonably questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge must exercise disqualification if he/she has a personal bias or prejudice concerning a party; has personal knowledge of disputed evidentiary facts concerning the proceeding or is likely to be a material witness in the proceeding; or knows that he/she has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][a][i]-[ii]; 100.3[E][1][c]; 100.3[E][1][d][iii]; 100.3[E][1][e]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has previously advised a judge that neither disqualification nor disclosure is required when the Office of Court Administration’s landlord is a party to a proceeding, absent any disqualifying factors and provided that the judge can be fair and impartial (see Opinion 10-60). The Committee observed that the proceeding did not involve OCA in any respect or any of the judges personally (see id.).

         Here, too, the proceeding does not involve the judge or his/her employer, and there is no indication that the judge witnessed the alleged theft (cf. 22 NYCRR 100.3[E][1][a][ii]; 100.3[E][1][e]) or otherwise has any impermissible knowledge of, or interest in, the case. Therefore, under these circumstances, the Committee believes the judge’s impartiality cannot reasonably be questioned merely because the judge’s nonjudicial workplace is physically located within space leased from the store (see 22 NYCRR 100.3[E][1]). As the judge has determined that he/she can be fair and impartial, the judge need not disqualify him/herself (see People v Moreno, 70 NY2d 403 [1987]).

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       ¹ For example, the store manager, who provided a written statement about the alleged theft, is “rarely seen” and no more than an acquaintance.