Opinion 17-126

September 7, 2017

Digest:         A judge may continue to preside in a declaratory judgment action, even after learning that his/her spouse’s employer made political contributions to a named respondent, provided the judge believes he/she can be fair and impartial. The judge need not make any disclosure.

Rules:          Judiciary Jaw § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-75; 15-212; 15-62; 06-177; 98-22; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge is presiding in a declaratory judgment action filed by the Board of Elections. While neither the judge’s spouse nor his/her employer are named or involved in the action, the spouse helps decide which political campaigns the employer should support and which staff should attend particular political fund-raisers. After seeing media reports, the judge’s spouse advised the judge that the employer’s political action committee made a donation to a named respondent’s election campaign, and the spouse attended respondent’s fund-raiser. The judge states he/she can be fair and impartial in the case, but asks if disclosure or disqualification is nonetheless required.

         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]). A judge must disqualify him/herself where required by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]; see Opinion 17-75). However, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         We have advised that “a judge’s spouse remains free to engage in his/her own bona fide independent political activities” (Opinion 15-62 [internal quotation marks omitted]; see also Opinion 98-22 [a judge’s spouse may make a political contribution, “provided that the contribution is not actually the indirect contribution of the judge”]).

         Here, the campaign contribution was made by the judge’s spouse’s employer at the direction of the judge’s spouse, who also attended the fund-raiser. However, although the matter before the judge involves the Election Law, the spouse’s employer’s campaign contributions and political activity are not at issue in the proceeding, the spouse and his/her employer are not named respondents, and the judge does not anticipate they are likely to be witnesses or otherwise involved in the case. We also note the judge’s spouse was acting in the course of his/her employment, and the judge played no part (see generally Opinion 15-212).

         Based on the above, the facts are “too remote ... to create a situation where the judge’s impartiality might reasonably be questioned” (Opinion 06-177). Thus, since the judge has decided he/she can be fair and impartial and the connection with the declaratory judgment action is so remote, there is no reasonable basis to question the judge’s impartiality in this case.

         Therefore, the judge need not make any disclosures concerning the campaign contribution nor must he/she disqualify him/herself from presiding in the action.