Opinion 98-29

April 23, 1998

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Digest:         A justice of the Appellate Division should recuse himself or herself in appeals in tort cases brought against a municipality which originate in a county where the judge's spouse serves as Deputy Chief of the Corporation Counsel's tort division for that county, but such disqualification is subject to disclosure and remittal, where feasible.

Rules:          22 NYCRR 100.3(E)(1)(e); 100.3(F), Opinions 97-82; 97-39; 90-91(Vol. VI).

Opinion:

         A justice of the Appellate Division is married to the Deputy Chief of the Corporation Counsel's tort division for a particular county within the municipality. The judge inquires whether recusal is required in connection with appeals in tort cases brought against the City, which originate in that county.

         The judge indicates that the duties of the Deputy Chief are such that the judge's spouse would be directly or indirectly involved with most if not all tort cases handled by the division. The judge also advises that, as a trial judge, it was the judge's practice to recuse himself/herself in all tort cases against the municipality.

         Section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct states that a judge should disqualify himself or herself where his or her impartiality might reasonably be questioned, including but not limited to instances where:

The judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person is acting as a lawyer in the proceeding.

         In prior opinions dealing with trial level judges, this Committee stated that recusal is mandatory in those cases where a judge's spouse has had any "involvement" as an attorney in a particular case, subject to the provisions governing disclosure and remittal. But the Committee has also stated that the mere employment status of a judge's spouse as an assistant attorney in a large public law office does not automatically require recusal (See, Opinion 97-82 [judge's spouse Legal Aid Attorney]; Opinion. 97-39 [judge's fiancee assistant district attorney] Opinion 90-91(Vol. VI).

         The Committee see no distinction between trial and appellate judges in this regard. None is made in the Rules. Nor is it possible to characterize the judge's spouse simply as an assistant in a large public law office. In the case at hand, it appears that the judge's spouse occupies an office which is sufficiently elevated within the Corporation Counsel's hierarchy as to warrant the inference of direct or indirect involvement in a substantial number, if not all, tort cases against the City which emanate from the county. The Committee therefore believes that the judge should disqualify himself or herself in all such cases.

         However, there is no reason why such disqualification should not be subject to remittal pursuant to section 100.3(F) of the Rules. That is, if it is feasible for disclosure to be given of the basis of the disqualification, prior to submission or argument of the appeal, then it might be possible for there to be a remittal of the disqualification. Absent such a remittal, the judge remains disqualified in appeals in tort cases against the municipality arising in the county where the judge's spouse serves as Deputy Chief of the division charged with handling such cases for the Corporation Counsel.