Opinion 21-35

 

March 11, 2021


Please Note: Whiel it does not affect the outcome here, see AO-347 concerning the status of Sections 100.4(D)(5)(h) and 100.4(H)(2).

 

Digest:         A judge may attend a sporting event or concert in a luxury box as a guest of the judge’s spouse, where use of the luxury box seats is a benefit incident to the spouse’s employment as officer of a company that is unlikely to come before the judge, and could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

 

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1)(c)-(d); 100.4(A)(1)-(3); 100.4(D)(5); 100.4(D)(5)(b); 100.4(I); Opinions 19-162; 18-65; 17-106; 13-24; 09-209; 09-74.

 

Opinion:

 

         A judge asks if they may attend sporting events or concerts in a “luxury box” sponsored by the employer of the judge’s spouse, as the spouse’s guest. The judge’s spouse is a high-level officer of a company in the hospitality/entertainment field, which, as a part of its operations, purchases reserved luxury box seats for sporting events and concerts and provides tickets to “customers, staff and vendors” for business purposes. The judge’s spouse is “required to host a luxury box a few times each year” and “is permitted to bring a guest.” The judge indicates that the company does not have any matters pending in the judge’s court and plans to recuse from any such matters in the future. The judge further states that those in attendance in the luxury box are unlikely to include attorneys. The judge also asks, in the alternative, if they may visit the spouse in the luxury box if they have independently purchased tickets to the event.

 

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally participate in extra-judicial activities, provided they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not “convey or permit others to convey the impression that they are in a special position to influence the judge” (see 22 NYCRR 100.2[C]). Thus, a judge “shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to accept,” a gift or favor, unless an exception applies (see 22 NYCRR 100.4[D][5]; Opinion 17-106). One exception permits receiving a “gift, benefit or award incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge’s household, including gifts ... for the use of both,” provided it “could not reasonably be perceived as intended to influence the judge in the performance of judicial duties” (22 NYCRR 100.4[D][5][b]; Opinion 09-74).

 

         We have said that if a judge’s spouse, a law enforcement official, is the invited party to a conference in a foreign country for law enforcement officials and the judge would be present solely as their spouse’s guest, the judge may attend and accept payment of travel expenses from the conference host (see Opinion 09-74). We also said a judge may attend their spouse’s annual awards dinner sponsored by a police benevolent association and may accept free admission, where the spouse was to receive an award (see Opinion 19-162). These invitations were deemed a permissible gift, award or benefit incident to the business, profession or other separate activity of the spouse (see 22 NYCRR 100.4[D][5][b]).

 

         Here, too, Section 100.4(D)(5)(b) clearly applies. Use of the luxury box is incident to the spouse’s business or profession, and the judge’s spouse must serve as host of the luxury box several times each year for customers, staff and vendors. Further, the spouse’s employer permits the spouse to invite or include a guest free of charge, and the judge would be attending the event solely as their spouse’s guest.1

 

         On the facts presented, we also believe the benefit “could not reasonably be perceived as intended to influence the judge in the performance of judicial duties” (22 NYCRR 100.4[D][5][b]), notwithstanding its potentially “lavish, expensive and/or exclusive” nature (cf. Opinion 18-65). The judge does not anticipate that their spouse’s employer, or even any of the other guests in the luxury box, are likely to appear in the judge’s court. Indeed, the spouse’s employer does not have any pending cases before the court, and the judge would recuse from any such matters (see 22 NYCRR 100.3[E][1][d] [disqualification required when judge’s spouse “is an officer, director or trustee of a party”]; 100.3[E][1][c] [disqualification required when judge’s spouse has an “interest that could be substantially affected by the proceeding”]; Opinion 13-24). The fact that the judge’s spouse is obligated to host the luxury box as a part of their employment, and is permitted to bring a guest, only strengthens the conclusion that this benefit would not create an appearance that the spouse’s employer was attempting to curry favor with a judge, nor would it cause the public to question the judge’s impartiality. Furthermore, the inquiring judge has indicated that those in attendance in the luxury box are unlikely to include attorneys.

 

         Accordingly, we conclude that the judge may accept admission to their spouse’s company’s luxury box as the spouse’s guest. It is immaterial, for purposes of our analysis, whether the inquiring judge may have purchased their own individual tickets or a season pass for the same or similar events.

 

         Finally, the judge must comply with any applicable reporting requirements with regard to attendance at the luxury box; while Section 100.4(D)(5)(b) does not contain any reporting requirement, we cannot comment on whether Part 40 might potentially apply (see 22 NYCRR 100.4[I]).2

 

 

 

____________________

 

1 Of course, when a business offers perks directly to a judge, Section 100.4(D)(5)(b) does not apply. While a judge generally may accept the same routine perks and accommodations as other similarly situated customers (see e.g. Opinion 09-209), we said a judge who will likely hear cases involving a local casino may not accept the casino’s invitations to attend relatively lavish, expensive and/or exclusive events (see Opinion 18-65 [noting risk of an appearance that the casino is seeking to curry favor with a judge who will preside in cases involving its interests and cause the public to question the judge’s impartiality in such matters]).

 

2 Such questions may be referred to the UCS Ethics Commission, which oversees financial disclosures under Part 40 (http://ww2.nycourts.gov/IP/ethics/index.shtml).