Opinion 17-74

May 4, 2017

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         A full-time judge need not recuse him/herself from all cases involving a hospital that recently provided emergency medical care to the judge, as long as he/she believes he/she can be impartial. Disclosure is not required, but the judge may disclose the incident in his/her sole discretion as a prophylactic measure.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 1002(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 08-124; 07-35; 03-11; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge was recently taken by ambulance to a hospital’s emergency room. After diagnostic tests, he/she was discharged the same day. The judge has no other connection to the hospital or its employees and believes the experience will not compromise his/her impartiality in hospital cases. The judge asks if he/she may continue to preside when the hospital is a party, including in medical malpractice cases now pending before him/her.

         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 any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Here, the Committee concludes this judge’s experience as a hospital patient does not, without more, create any objectively reasonable basis to question the judge’s impartiality or otherwise create any appearance of impropriety (see Opinion 08-124 [judge is a patient, volunteers as an emergency medical technician, and is friends with certain doctors and nurses]; 22 NYCRR 100.2; 100.3[E][1]). Nor does the inquiry reveal any basis for mandatory disqualification (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Accordingly, the judge “is the sole arbiter of recusal,” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Having decided he/she can be impartial despite his/her recent, brief hospital stay, the judge need not disqualify from the hospital’s cases (see generally Opinions 08-124; 07-35; 03-11). The judge also need not disclose the incident, but may do so in his/her sole discretion as a prophylactic measure.¹

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         ¹ Where, as here, disclosure is not mandated, a judge who chooses to disclose continues to retain full discretion about whether or not to preside, even if the parties object and regardless of whether any party is appearing pro se.