Opinion 90-20

March 1, 1990

Digest:         A part-time judge may handle a proceeding against civil disobedience demonstrators, where the judge’s spouse supports the same cause, provided that the judge feels he can be impartial.

Rules:          22 NYCRR §§100.2 and 100.3(a)

Opinion:

         A part-time judge inquires whether he should recuse himself in a disorderly conduct proceeding before him against defendants involved in a civil disobedience protest against the placement of a nuclear waste dump in the local county. The judge’s spouse also is involved in supporting the same cause, although she has no connection with this group of demonstrators. The judge states that he feels he could be fair in hearing the case, but he worries that others might feel that the decision was biased.

         Section 100.2(a) of the Rules of the Chief Administrator of the Courts provides in part:

A Judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.

Section 100.2(b) provides:

No judge shall allow his or her family, social or other relationships to influence his or her judicial conduct or judgment.

Section 100.3 of the rules provides in part:

A judge shall be unswayed by partisan interests, public clamor, or fear of criticism.

         The fact that the judge’s spouse is involved in supporting the same cause as the defendants, namely opposition to the dumping of nuclear waste in the county, is not, in itself, a basis for the judge’s recusal on the ground of the appearance of impropriety, in the absence of other circumstances. The issue in the proceeding concerns the disorderly conduct provisions of the Penal Law, and the views of the judge’s spouse concerning the nuclear waste site are not relevant to that issue. The judge may preside if he is confident that he can be impartial, and will not be subject to pressures that might undermine his impartiality. However, if the judge feels that the community may perceive him as not being impartial, he may, in his discretion, disqualify himself.