Opinion 18-12

January 24, 2018

Digest:         (1) A judge whose spouse is a county legislator is disqualified from cases where the spouse or county legislature is a named party. (2) If the judge’s spouse has no personal involvement in the case before him/her and the judge can be fair and impartial, and absent additional factors creating an appearance of impropriety, the judge may otherwise preside in: (a) matters challenging a county law, ordinance or code provision, even if his/her spouse strongly supported or opposed the law as a legislator; (b) county-related matters over which his/her legislator spouse exercised some quantum of oversight or expressed criticism or praise; and (c) matters involving county departments, entities, or employees.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(i)-(ii); 100.3(E)(1)(e); 100.3(F); Opinions 12-75; 10-190; 99-108; 93-131; 90-20; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge is married to a county legislator. The judge first asks about his/her ethical obligations in cases where his/her spouse arguably has some degree of involvement, such as:

    •   the judge’s spouse or the county legislature is a named party;

    •   the case involves a challenge to a county “law, ordinance or code provision with respect to which [the judge’s spouse] had been a particular advocate or opponent”; or

    •   the case involves “[c]ounty-related matters over which” the judge’s legislator spouse “had exercised some quantum of oversight or expressed criticism or praise.”

The judge also asks about his/her obligations “in other cases involving [the county] or any of its departments, agencies or related entities or its or their employees or officers.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify him/herself in a case where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) and where specifically required by rule or by law (see generally id.; Judiciary Law § 14), including when the judge’s spouse “is a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]) or “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]). Conversely, if disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         Clearly, the judge may not preside when the judge’s spouse is a named party, and remittal is not available (see 22 NYCRR 100.3[E][1][d][i]; 100.3[F]; Judiciary Law § 14). Similarly, we believe the judge also may not preside in a matter where the county legislature is named as a party, while his/her spouse is a county legislator (see 22 NYCRR 100.3[E][1][d][i]-[ii]).

         Where the judge’s spouse has some arguable connection in his/her legislative capacity, but has no involvement whatsoever in the case before the judge, whether as a “likely ... material witness” or otherwise (22 NYCRR 100.3[E][1][e]), a few prior opinions provide some guidance. If a trial judge’s spouse is an attorney in private practice, the judge may preside in a matter that involves legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters, “[p]rovided that the judge can remain fair and impartial, and absent any other factor requiring disqualification” (Opinion 12-75). A judge may also handle a proceeding against civil disobedience demonstrators, where the judge’s spouse supports the same cause, provided that the judge is confident he/she can be impartial (see Opinion 90-20). Here, we likewise conclude the judge is not disqualified from presiding in a challenge to a county law, ordinance or code provision, merely because the judge’s legislator spouse publicly took a position supporting or opposing it.¹ Of course, the judge must disqualify him/herself if the judge’s spouse has any personal involvement in the case before him/her (see Opinion 93-131).

         We have also advised that a Court of Claims judge may preside in a civil case related to a “concluded” criminal matter in which the judge’s spouse was the District Attorney (see Opinion 99-108 [emphasis added]). Somewhat analogously, we conclude this judge is not disqualified from presiding in county-related matters over which his/her legislator spouse previously exercised some quantum of oversight or expressed criticism or praise, again provided the spouse has no personal involvement in the case before the judge (see Opinion 93-131).

         Finally, we believe the judge ordinarily need not recuse him/herself in other cases involving county departments, entities, or employees, merely based on the spouse’s service as county legislator, provided the judge’s spouse has no personal involvement in the case before him/her and absent additional factors that would create an appearance of impropriety (see generally Opinion 93-131).

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¹ Although not directly applicable, we also note that a town justice who previously served on the town board “and who voted on legislation amending and promulgating town laws and ordinances” need not disqualify him/herself “when such town laws and ordinances are the subject of cases before him/her” (Opinion 10-190).