Opinion 20-63

June 18, 2020

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A judge who recently negotiated a settlement of his/her lawsuits against a city must fully disclose these prior litigations in matters where the city is a party for two years from the date the presiding judge signs the order of settlement. During this period, if any party appears without counsel in matters where the city is a party, the judge must disqualify him/herself. (2) Opinions 18-139, 17-03, 14-11, 08-59, 04-66, 98-161, and 91-52 are modified or overruled to the extent they suggest a judge’s obligation completely ends when the litigation terminates.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 18-171; 07-206.

Opinion:

         A city court judge, who is also a property owner, commenced tax certiorari proceedings against the city challenging the assessments on certain real properties. The judge has settled these matters with the municipality and is waiting for the stipulations of settlement to be approved by the Supreme Court, which will result in a refund of overpaid real estate taxes by the taxing authorities, including the school district, county and city. The judge asks how long he/she must wait to hear cases involving the city, and also seeks clarification as to when the time period, if any, commences.

         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 where the judge's impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), subject to remittal where permitted (see 22 NYCRR 100.3[F]). 

         Where a judge is a plaintiff in a civil action against a defendant whose defense is undertaken by a national insurance company, we have said the judge is disqualified from presiding in all matters where that insurance company appears during the pendency of the judge’s action (see Opinion 07-206). This disqualification is subject to remittal according to the usual three-step process if all parties are represented by counsel (see 22 NYCRR 100.3[F]; Opinion 07-206).

         Once the litigation in Opinion 07-206 was concluded, we imposed a two-year disclosure requirement in lieu of outright disqualification (see Opinion 07-206 [for two years after the judge’s civil action is concluded, the judge must disclose that the insurance company represented the defendant in the judge’s civil action when the insurance company appears in the judge’s court]). Here, too, for a period of two years after the matter is concluded, the judge must fully disclose his/her prior litigations in matters where the city is a party. If a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether disqualification is warranted (see Opinion 07-206). “As usual, where disclosure is mandated in lieu of outright disqualification, if any party is appearing without counsel, or if the judge is unwilling or unable to make the required disclosure, the judge must simply disqualify him/herself” (Opinion 18-171).

         We also take the opportunity to reconsider and amend our prior opinions in this area, as we believe the approach set forth here should be the ordinary rule. That is, in general, when a judge or a relative within the second degree of relationship (sibling or closer) by blood or marriage is a party litigant:

        •    The judge’s obligation during the litigation is to disqualify him/herself from matters when the judge knows that a party or attorney appearing before him/her is currently the judge’s (or the relative’s) party-opponent or opposing counsel.¹ The disqualification is subject to remittal as permitted by the Rules and our prior opinions.

        •    Thereafter, once the litigation is concluded, for two years, the judge must at least disclose the prior litigation when the judge knows that a party or attorney appearing before him/her was the judge’s (or the relative’s) party-opponent or opposing counsel within the past two years.² Because this disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel in the matter before him/her.

        •    After this two-year period, the judge ordinarily has no further obligation, provided he/she can be fair and impartial, and thus need not disclose or recuse.

         The judge further asks when the two-year period commences. In this instance, we believe the certiorari proceedings are not completed until the superior court judge signs the order of settlement. Although the funds may not be distributed for a period of time after the order has been entered and served on the respondent city, we believe disbursement of the money can be treated as a ministerial act here and thus the two-year period need not be tolled or delayed.

         Therefore, we conclude that the two-year period commences once the court signs the settlement order. We assume there will be timely notice of entry of the order and service on the respondent(s).

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¹ We nonetheless reaffirm Opinion 99-78, which involves judicial threats and an apparent judge-shopping scenario and Opinion 16-11, which permits a judge to preside in a matter where his/her current litigation opponent is involved strictly as a mere stakeholder.

² Opinions 18-139, 17-03, 14-11, 08-59, 04-66, 98-161, and 91-52 are modified or overruled consistent with this opinion, to the extent they say or imply that the judge’s obligation terminates when the litigation ends. However, we reaffirm Opinions 19-78 and 16-84, which involve campaign-related litigation between a judge and his/her election opponent.