Opinion 88-83

Sept. 19, 1988

Topic:          An associate Court Judge inquires as to whether there is any ethical impediment to hearing and deciding a landlord-tenant case in which the petitioner/landlord is the presiding judge of that court.

Digest:         A judge may not hear and decide a case in which the petitioner is the presiding judge of the court.

Rule:            22 NYCRR §§100.2(a) and 100.3(c)(1)

Opinion:

         The simple facts underlying this inquiry are as follows: the presiding judge owns several pieces of residential real estate which he leases or rents to others. From time to time, when a tenant fails to pay the rent, the presiding judge, as the landlord, seeks a warrant of eviction to regain the premises. The query is whether the associate judge of that court must disqualify himself from these cases.

         Under the constraints of the Rules of the Chief Administrator of the Courts and of the Canons of Judicial Ethics, a judge must avoid impropriety, and as importantly, must avoid the appearance of impropriety. With equal compulsion, a judge must be impartial and diligent in the performance of his or her judicial duties. Section 100.3(c) of the Rules of the Chief Administrator [22 NYCRR] states that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, ....” Section 100.2 states, inter alia, “a judge shall...conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.”

         There can be no question that the impartiality of a judge who has a subordinate position to one of the parties in a case before him “might reasonably be questioned.” Nor can there be doubt that the public confidence in the judiciary is adversely affected where it appears that one party has an advantage by reason of that party's relationship to the judge.

         Here, regardless of whether the presiding judge would be given favor by the associate judge, it can be expected that litigants would have the perception that an associate judge would give preferential treatment to the presiding judge. To maintain and promote public confidence in the judiciary, it is necessary that there be no appearance of impropriety. The appearance of impropriety in this case would be enormous. A presiding judge is analogous to “the boss.” The ordinary litigant would not believe that he or she was getting a fair assessment of his or her claim if “the boss” of the judge hearing the case were the party in opposition. Public confidence cannot be maintained if any of the judges who work under the presiding judge hear a case in which the presiding judge is a party. Accordingly, no associate judge can hear a case in which the presiding judge is a party, and the case should be transferred to another court.

         This Opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.