Opinion 17-03

March 16, 2017

Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.

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:         (1) A judge who is disqualifying him/herself from cases involving New York City and its agencies due to his/her minor child’s ongoing personal injury action against the city and its board of education may nonetheless preside in the following circumstances, assuming he/she can be fair and impartial:

(a) when a private law firm representing a defendant in the child’s lawsuit appears before the judge in an unrelated matter, provided no party is appearing without counsel and the judge makes full disclosure on the record;

(b) in cases involving state public benefit corporations;

(c) in motions seeking to unseal records in possession of the District Attorney’s Office, whether or not contested; and

(d) in a personal injury action against non-city defendants arising from an injury claimed to have occurred on a city street, notwithstanding that a separate action arising from the same injury, not pending before the judge, has been filed against the city.

(2) In a matter where parties have requested records from the city (or one of its agencies) as a non-party:

(a) if the non-party city agency does not appear or take a position in the matter, the judge may continue to preside;

(b) if the non-party city agency appears or opposes a motion to quash or motion to unseal, the judge must either transfer the motion to another judge or disqualify him/herself, subject to remittal; but

(c) if a party files a motion seeking to punish a non-party city agency for contempt, the judge is disqualified from the entire case, subject to remittal.

Rules:          NY Const art XIII, § 13; County Law § 700; Judiciary Law § 14; Public Authorities Law §§ 1201(1); 1203-a(2); 1263(1); Public Housing Law § 401; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 16-120; 16-11; 15-201; 15-18; 13-51/13-169; 12-75; 11-64; 07-49; 06-14; 02-54; 91-52; People v Moreno, 70 NY2d 403 (1987).

Opinion:

A full-time judge whose minor child is suing New York City and its board of education for personal injuries suffered on school premises intends to recuse him/herself from any case in which the city or a city agency is a party. He/she now asks a series of questions about any additional recusal obligations arising from the pending action.

A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial judgment or conduct (see 22 NYCRR 100.2[B]) and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). 

There are two initial objective questions to consider when determining if disqualification is required. The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge’s impartiality might nevertheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

1. Private Law Firm Representing the Child’s Litigation Opponent

The judge first asks about his/her obligations if a private law firm representing his/her child’s non-city adversary appears in the judge’s court on unrelated matters.¹ In Opinion 91-52, this Committee advised that a judge who had commenced a medical malpractice suit on behalf of the judge’s infant child need not recuse from a case in which an attorney representing a defendant in the malpractice action appeared before the judge, unless the judge believed he/she could not be impartial. We determined that the judge should, however, disclose the information to the attorneys for all parties involved in the litigation, and if any party objected, the judge would have to recuse him/herself (see also Opinion 06-14 [mandating disclosure and recusal on objection where an attorney appearing before the judge also represents the defendants in a civil action filed by the cooperative of which the judge is a proprietary lessee]). In recent years, the Committee has moved away from this standard because it could cause confusion about the proper procedure for remittal of disqualification.²

The Committee finds that the best approach here is to require disclosure in lieu of disqualification. Unless the judge believes he/she cannot be impartial, he/she need not recuse in the first instance when a private law firm representing a defendant in the child’s lawsuit appears before him/her but must fully disclose the representation. If a party objects, the judge has full discretion about whether or not to recuse under the circumstances. If any party appears without counsel, the judge must disqualify him/herself. The requirement continues until the child’s lawsuit ends (see Opinion 91-52). Opinions 91-52 and 06-14 are hereby modified to be consistent with this result.

2. Cases Involving Certain City-Related Entities

A.  Transportation and Housing Authorities

The judge next asks whether, having recused from all cases in which the city is a party, he/she must recuse from cases whose litigants include the Metropolitan Transportation Authority, the New York City Transit Authority, the Manhattan and Bronx Surface Transit Operating Authority, or the New York City Housing Authority. Each of these is a public benefit corporation created by the State Legislature (see Public Authorities Law §§ 1263[1]; 1201[1]; 1203-a[2]; Public Housing Law § 401).

The Committee has advised that a judge who is disqualified in matters involving a municipal entity that administers the judge’s tenant’s rent subsidy is not disqualified for that reason when other municipal departments appear in the judge’s court, unless some relevant, additional factor in a particular case could cause the judge’s impartiality to reasonably be questioned (see Opinion 13-51/13-169). From this it necessarily flows that when, as here, the judge is disqualified from presiding over matters involving the city, his/her impartiality cannot, for that reason, reasonably be questioned when a state public benefit corporation appears in his/her court.

B. Subpoenas on the City or Its Agencies as Non-Parties

The judge is not disqualified from presiding over matters in which the parties request records via subpoena from the city or its agencies, as long as the city is not a party to the action and has not taken a position regarding the subpoena or any party’s motion to quash it (see Opinion 16-11). “A reasonable observer must conclude that the [city] has no interest in the outcome” of the motion to quash, and “it is most difficult to see how the judge’s impartiality could be questioned, merely because the judge is adverse to the [city] in an entirely unrelated case” (id.).

If the non-party city appears or moves to quash a subpoena, however, the judge cannot decide the motion absent remittal of disqualification. The judge may transfer the motion to quash the subpoena to another judge for decision. Thereafter, provided that the judge concludes the non-party city is not likely to be further involved in the case (whether as a party, witness, intervenor, or otherwise), this judge may resume presiding in the case (cf. Opinion 07-49).

Alternatively, the judge may disqualify him/herself when the non-party city appears or moves to quash a subpoena. This disqualification is subject to remittal after full disclosure, as long as no party is appearing without counsel. Remittal under these circumstances also requires consent of the city and its counsel.³

C. Motions to Unseal City Police Records

The same rule applies to a motion seeking to unseal records in possession of the New York City Police Department. If the police department, a city agency, does not appear or object, the judge may decide the motion. But if the department appears or opposes the motion, the judge has two choices.

The judge may, if feasible, transfer the motion to quash the subpoena to another judge for decision. Thereafter, provided the judge concludes the non-party police department is not likely to be further involved in the case (whether as a party, witness, intervenor, or otherwise), the judge may resume presiding in the case.

Alternatively, the judge may disqualify him/herself from the case. If he/she does so, he/she may not take any further action in the case unless there is remittal of disqualification by all parties, the police department, and their counsel.

D. Motions to Unseal Records in the District Attorney’s Office

The Office of the District Attorney, by contrast, is not a city agency (see NY Const art XIII, § 13; County Law § 700), and the judge may preside over any motion seeking to unseal records in its possession.

E. Contempt Motion Against the Administration for Children’s Services

Similarly, since the judge has recused him/herself from matters involving the city and its agencies, he/she may not preside over a non-ministerial contempt motion seeking to punish the city’s Administration for Children’s Services (ACS) for its failure to comply with a subpoena. If such a motion is brought against non-party ACS, the judge cannot continue to preside in the case unless there is remittal of disqualification by all parties and their counsel as well as non-party ACS and its counsel (cf. Opinion 16-120).

3. Personal Injury Action Against Non-City Defendants

Finally, absent other disqualifying factors, the judge may hear a personal injury action against non-city defendants arising from an injury claimed to have occurred on a city street, notwithstanding that a separate action arising from the same injury, not pending before the judge, has been filed against the city. There is no appearance of impropriety merely because the judge is deciding legal issues similar to those at issue in a case in which the judge is disqualified. Because a trial court opinion remains only persuasive authority for other trial court judges presiding in unrelated proceedings, this judge’s legal determinations do not substantially affect the outcome of unrelated proceedings pending before other judges (see Opinion 12-75 [trial court judge may preside in matter involving legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters]; cf. Opinions 02-54 [“there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge”]; 15-18 [judge may preside in cases of protestors arrested on the same charges as the judge’s second-degree relatives]).

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         ¹ The judge’s child is considering adding a particular private sector defendant to his/her existing lawsuit. This defendant would presumably retain a private law firm to represent it.

           ² The hybrid standard essentially shifts the burden to the parties, requiring them to affirmatively object if they do not wish the judge to preside.

           ³ Remittal is not permitted if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure of the basis for disqualification, or if the judge doubts his/her ability to be impartial. Where permitted, 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 e.g. Opinion 15-201 n 1; 22 NYCRR 100.3[F]).