Opinion 20-148

September 10, 2020

Digest:         Where a judge and their spouse are alleged victims with an order of protection against a criminal defendant, the judge may nonetheless preside over unrelated matters involving the prosecutors, defense counsel, and police or probation officers from that criminal case. The judge also need not disqualify merely because an attorney in the case called or cross-examined the judge or their spouse as witnesses.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 20-25; 14-55; 13-83; 11-86; 99-78; 90-18; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         An individual has been arrested and arraigned on charges of vandalizing the judge’s marital residence, and the criminal proceeding is pending in the same court where the judge presides.¹ The assistant district attorney and assistant public defender in the vandalism case thus both regularly appear in the judge’s court. The judge states they can be fair and impartial when those attorneys appear, but asks if disqualification or disclosure is required in unrelated cases (not involving that same defendant) involving the same prosecutor, defender, police officers and/or probation officers involved in the vandalism case. The attorneys, police and probation department officials are involved in the criminal case solely in their professional and representative capacities.²

         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]). Thus, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).³

         Certainly if the judge believes they cannot be impartial when these same attorneys, police or probation officers appear in a matter, then the judge must disqualify. However, we believe the circumstances do not trigger any of the specifically enumerated grounds for mandatory disqualification when these attorneys and others appear in their representative capacities in unrelated matters (see 22 NYCRR 100.3[E][1]). Therefore, the question is whether the judge’s impartiality “might reasonably be questioned” (id.).

         We recently considered a judge’s obligations with respect to the attorneys involved in a criminal prosecution where the judge’s child was the alleged victim and the judge was a witness to the alleged crime (see Opinion 20-25). We concluded neither the child’s status as a crime victim nor the judge’s status as witness would raise reasonable questions about the judge’s impartiality in unrelated matters involving the attorneys prosecuting and defending the accused (id.). Thus, provided the judge can be fair and impartial, we said the judge may preside in unrelated matters involving these attorneys, even if defense counsel cross-examines the judge and/or the judge’s child (id.).

         The present inquiry differs from Opinion 20-25 primarily in that the judge is also a crime victim, and not merely a witness to the crime. We conclude the same principles apply and the judge’s impartiality cannot reasonably be questioned in unrelated matters involving the attorneys prosecuting and defending the vandalism case in which the judge and their spouse are the alleged victims (cf. Opinions 11-86 [judge may continue to preside in a case even though the judge and their family are victims of threats made by a litigant]; 99-78 [judge may continue to preside in a custody case even though the judge is an alleged victim of criminal harassment by the respondent]).⁴ Nor do we see any reason to apply a different standard to the police officers or probation officers involved in the vandalism case who, like the attorneys, are involved solely in their professional capacities.

         Accordingly, where a judge and their spouse are alleged victims of vandalism with an order of protection against a criminal defendant, the judge may nonetheless preside over unrelated cases involving the same prosecutors, defense counsel, and police or probation officers from that criminal case. The judge need not disqualify even if the attorney has called or cross-examined the judge or their spouse as a witness in the case (see Opinions 20-25; 14-55; 90-18).

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¹ Both the inquiring judge and their co-judge disqualified from the matter.

² The judge obtained an order of protection against the defendant and is disqualified from any cases involving that individual (see Opinion 13-83).

³ There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules (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 nonetheless “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” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions their own ability to be impartial in a particular matter, then they must not preside.

⁴ Of course, when a litigant already appearing before the judge threatens or harasses the judge or the judge’s family, there is an additional concern that the litigant is attempting to force the judge’s disqualification. The present inquiry, by contrast, appears to raise no such judge-shopping concerns.