Opinion 22-179

December 15, 2022

Digest:         A judge is not disqualified from an Article 78 proceeding in which a media outlet seeks to compel a law enforcement agency to disclose certain information about an inmate pursuant to the Freedom of Information Law, merely because the judge’s attorney spouse sent a preservation letter to the same agency on an unrelated matter.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 21-14; 12-75; 11-103; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge has been assigned an Article 78 proceeding in which a media outlet seeks to compel a law enforcement agency to disclose certain information about an inmate pursuant to the Freedom of Information Law (FOIL). The agency has asked the judge to recuse because the judge’s spouse, an attorney in private practice, has sent a preservation letter to the agency on behalf of a client. There is no connection between the judge’s spouse’s case and the Article 78 proceeding before the inquiring judge, except that they both happen to involve FOIL requests to the same agency.¹ The judge asks if it is ethically permissible to preside.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Disqualification is required, for example, where the judge’s spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or has an interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]). Where disqualification is not mandated, however, a trial judge is the sole arbiter of recusal (see e.g. Opinion 11-103; People v Moreno, 70 NY2d 403 [1987] [“when recusal is sought based upon impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter”]).

         Disqualification is not required merely because an attorney appearing before a judge is the legal adversary of the judge’s attorney spouse in an unrelated “very litigious case” in another court (see Opinion 11-103). In Opinion 11-103, we noted the judge had no prohibited interest or prejudice in the matter before them, and we concluded the judge need not disqualify “unless the judge cannot remain fair and impartial or has a personal bias against the attorney” (id.).

         We have also said that “there is no appearance of impropriety merely because the judge is deciding legal issues similar to those that the judge’s [attorney] spouse is litigating in unrelated matters” (Opinion 12-75). Indeed, in Opinion 12-75, we considered and rejected the argument that “the judge’s spouse has ‘an economic and a professional interest’ in the subject matter of the proceeding currently before the judge” in such circumstances. As we explained (id.):

A trial court opinion, no matter how well-reasoned and convincing, remains only “persuasive authority” for other trial court judges presiding in unrelated proceedings to consider. ... But even when such other judges choose to apply a similar legal analysis..., they are exercising their own independent judicial judgment in applying the law to the facts before them. Thus, ... the inquiring judge’s legal determinations do not “substantially affect” the outcome of unrelated proceedings, pending before other judges, in which the inquiring judge’s spouse appears.

         Here, too, we see no appearance of impropriety nor any reasonable basis to question the judge’s impartiality on the facts described, merely because a client of the judge’s attorney-spouse is adverse to the same law enforcement agency and the dispute involves a FOIL request, even if it is possible that the judge in that other matter might review and consider an eventual published decision by the inquiring judge. We emphasize that this judge’s determination of the media outlet’s FOIL request in the Article 78 is completely independent of the outcome of the judge’s spouse’s case (see generally Opinions 21-14; 12-75; 22 NYCRR 100.3[E][1] [requiring disqualification where judge’s impartiality “might reasonably be questioned”] [emphasis added]).

         Accordingly, provided that the judge can remain fair and impartial, we conclude the judge is not disqualified from presiding in the pending Article 78 proceeding on the basis of their spouse’s representation of a client in a similar but unrelated matter.

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¹ While this fact is not necessarily determinative, we note that the law enforcement agency’s counsel acknowledges that the two matters are unrelated.