Opinion 16-123

September 8, 2016

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 must continue to disclose that prosecutors presently appearing before the judge were personally involved in a proceeding involving the judge’s second-degree relative’s criminal conviction for a two-year period after entry of judgment on that proceeding notwithstanding the relative’s death. If, after disclosure, a party objects to the judge presiding, the judge has discretion whether or not recusal is warranted. The judge need not disclose that his/her relative died but if this fact is disclosed, the cause of death need not be.

Rules:          Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-18; 14-60; 14-51; 11-64; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         The inquiring judge’s second-degree relative, who was the subject of criminal proceedings that concluded less than two years ago, has recently died of an illness.¹ Up to now, the judge has been making disclosures as required by Opinion 14-51 whenever the prosecutors who were personally involved in those proceedings appear before the judge. The judge asks whether his/her relative’s death terminates this disclosure obligation. If not, the judge asks whether he/she must now also disclose that his/her relative died and reveal the cause of death.

         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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). However, in instances where the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]]; Judiciary Law § 14), disqualification is nonetheless required if the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403,405 [1987]) but should not preside if he/she questions his/her own ability to be fair and impartial (see Opinion 11-64).

         A judge is disqualified, subject to remittal where permitted, when an attorney who is personally involved in prosecuting or defending the judge’s second-degree relative appears before the judge (see Opinion 14-51; 22 NYCRR 100.3[E][1]). This obligation applies at each stage, including trial, appeals, and any post-conviction proceedings (see id.). Once a particular stage is concluded, disclosure is required in lieu of disqualification for two years when those attorneys appear before the judge. If, after disclosure, a party objects to the judge presiding, the judge has discretion about recusal after considering all relevant factors.

         The Committee concludes that the death of the inquiring judge’s relative does not alter the analysis. The judge’s disclosure obligations remain entirely unchanged. The judge must continue to disclose the circumstances for a period of two years after the entry of judgment on the last stage of his/her relative’s case, when prosecutors who were personally involved in that stage of the case appear before the judge (see id; see also Opinion 14-60). Because disclosure is mandated here in lieu of disqualification, the judge must simply disqualify him/herself if a defendant is appearing pro se or if the judge is unwilling or able to make the requisite disclosures. The judge is not required to disclose his/her relative’s death or its cause.

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           ¹ Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (see Opinion 15-18 n 1; cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see e.g. Opinion 15-18 n 1).