Opinion 16-74

June 16, 2016

Digest:         A judge whose first-degree relative works for a local hospital may preside over cases in which a party calls witnesses, subpoenas records, or presents exhibits from the hospital which employs the judge’s first-degree relative, provided the relative has had no personal involvement in the matter. Similarly, neither disclosure nor disqualification is required merely because a case involves foster children who have been, or will be, treated in another unit of the hospital that employs the judge’s relative.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(ii)-(iii); 100.3(E)(1)(e); Opinions 15-150; 14-42; 03-11; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge presides over child protective proceedings in which “the [presentment agency] or other parties may call witnesses, subpoena records, and present exhibits obtained from [a large local h]ospital.” Although the hospital is not a party in any of these proceedings, the judge has authority to place children in foster care, and a specialized unit of the hospital provides services to such children. The judge’s first-degree relative,¹ a medical professional, has recently accepted employment at the hospital, albeit in different specialized unit that provides no pediatric care and has no connection to the unit that treats foster children. The judge asks if he/she may continue to preside in matters where evidence from the hospital is offered or where children are placed into foster care.

         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 not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself if he/she knows a person within the fourth degree of relationship by blood or marriage is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]), or that a relative within the sixth degree is an officer, director or trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]) or has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][iii]). Conversely, where disqualification is not mandatory under objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has advised that neither disclosure nor disqualification is required in cases where a hospital is a party and the presiding judge’s first-degree relative is a faculty member and division chief of the hospital, provided the relative and the relative’s division are not involved in the matter (see Opinion 03-11). If, however, a judge’s first degree relative is personally involved in a particular case, disqualification is required (see Opinion 14-42).

         Here, the hospital employing the judge’s relative is not a party, and the judge’s relative will have no personal involvement in any cases before the judge. Under these circumstances, the judge’s impartiality cannot reasonably be questioned in matters involving the hospital (see 22 NYCRR 100.3[E][1]), and the judge is the sole arbiter of recusal. Provided the judge can be fair and impartial, he/she may preside over cases involving foster children who have been, or will be, treated at the hospital and/or cases involving witnesses or records from the hospital, and disclosure of the employment relationship is not required.

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         ¹ A first-degree relative includes a child, step-child, parent or step-parent (see Opinion 15-150 n 1).