Opinion 19-170

January 30, 2020

Digest:         On these facts, a judge’s impartiality cannot reasonably be questioned in matters involving an assistant public defender, merely because the judge, in his/her capacity as a college or university administrator, has some supervisory authority over the APD’s spouse on a multi-year grant-funded research project. The judge may thus continue to preside in matters involving the APD, provided the judge concludes he/she can be fair and impartial, and disclosure is not required.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 19-128; 15-151; 13-49; 90-120; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring part-time judge is also a high-level administrator at a private not-for-profit college or university, where he/she heads the institutional planning department and serves as associate vice president of research and technology transfer. The institution recently hired the assistant public defender’s spouse to manage a multi-year grant-funded research project.¹ The underlying grant application lists the judge as “key personnel” who will “provide institutional data and various project activities and tasks as needed.” In addition, the judge will also “review expenses submitted against sponsored projects,” and will approve or disapprove expenses on the project. However, the APD’s spouse will not report directly to the judge, but to another faculty member who will help manage the project’s daily activities. On these facts, the judge asks if he/she may preside in matters where the APD appears.

         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 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 also disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). If the judge doubts his/her own ability to be fair and impartial in a particular matter, then he/she must not preside.

         While we have not previously addressed this specific scenario, some prior opinions may provide rough analogies. For example, although a part-time judge may not preside in matters in which his/her law firm colleagues appear, he/she may nonetheless preside in matters involving “an assistant district attorney who is the future spouse of the judge’s law firm colleague” (Opinion 13-49). We also said a village justice may continue as a client of a salesperson whose spouse is the village prosecutor and, unless the relationship is substantially more than an ordinary salesperson-customer relationship, “may preside over cases where the salesperson’s spouse appears as village prosecutor without disclosure or disqualification, provided the judge can remain fair and impartial” (Opinion 15-151). Likewise, although a village justice may not consent to appointment of a village trustee as the village court clerk, he/she “may consent to hiring a part-time court clerk whose spouse is a village trustee” (Opinion 19-128).

         Here, we note the APD’s spouse will work closely with another designated faculty member, rather than the judge, on a day-to-day basis. We believe this judge’s impartiality cannot “reasonably be questioned” in matters where the APD appears, merely because the judge, in his/her capacity as a college or university administrator, has some supervisory authority over the APD’s spouse on a multi-year grant-funded research project (see 22 NYCRR 100.3[E][1]; cf. Opinion 90-120 [discussing a part-time judge’s obligations when co-workers from his/her outside employment appear before him/her]). The judge may thus continue to preside in matters involving the APD, provided the judge concludes he/she can be fair and impartial, and disclosure is not required.

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¹ The position is a temporary one, lasting only for the duration of the project. “