Opinion 22-132
September 8, 2022
Digest: A judge may preside in matters involving the ex-spouse of the judge’s fifth-degree relative. The judge’s prior recusals, made during the relative’s marriage, do not require recusal in all subsequent matters involving the same litigants.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(i); 100.3(F); Opinions 22-90; 21-32; 13-114; 12-36; 09-189; 07-99; 06-91; 99-163; 93-50; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge asks if disqualification is required in matters where the ex-spouse of the judge’s fifth-degree relative appears as a party. The judge does not and has never maintained any social or familial relationship with this relative or the relative’s ex-spouse. The judge notes that, during the relative’s marriage, the judge previously recused from at least one case involving exactly the same litigants (the relative’s then-spouse and another person) on learning of the marital relationship, as well as other cases involving the relative’s then-spouse.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge is disqualified when “the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]; see also Judiciary Law § 14). Disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]). Conversely, when disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).
During the marriage, the judge clearly could not preside in any case when the judge knew that a party to the proceeding was the spouse of the judge’s fifth-degree relative by consanguinity or affinity (see 22 NYCRR 100.3[E][1][d][i]; 100.3[F]; Judiciary Law § 14).
Here, the marriage that created the basis for the judge’s disqualification ended in divorce, and therefore the judge is no longer related to the ex-spouse, as neither the judge nor the judge’s spouse share a “common ancestor” with the ex-spouse (see Opinions 13-114; 09-189). Thus, the judge is not mandatorily disqualified when the judge’s fifth-degree relative’s ex-spouse appears as a party before the judge (see Opinions 12-36; 07-99; see also Opinions 21-32 [a judge need not disqualify from matters involving an attorney acquaintance, merely because the attorney is the child of the judge’s spouse’s deceased former spouse, where the judge’s spouse and the attorney treat each other as acquaintances]); 06-91 [where the relationship between a lawyer-judge and the law firm in which he/she had been a partner is severed, there is no longer a basis for requiring another judge on the same court to disqualify that law firm]).
We have advised that “[t]he fact that the judge had previously exercised recusal at a time when the judge was under contract to sell the prosecutor a parcel of real estate, and the contract was thereafter rescinded, does not require recusal in a subsequent case” involving the same prosecutor and defendant (Opinion 99-163). Likewise, we said a judge who had previously recused in all cases involving an attorney need not continue to recuse, once “all prior obstacles between the judge and the subject attorney [were] removed” (Opinion 93-50). In Opinion 06-91, we considered whether a judge must continue to prohibit1 their co-judge’s former partners and associates from appearing in the court, once the co-judge’s connections with their former law firm are severed. As we explained (id.):
[T]he fact that the firm was originally disqualified in a particular case does not mean that it must remain so. Disqualification under section 100.6(B)(3) of the Rules is not intended as a punishment or sanction. Its purpose is to avoid the appearance of possible favoritism or undue influence that results where a judge or his or her law firm is permitted to practice in the same court where the judge presides. Because that danger has now been eliminated, we see no basis for requiring the continued disqualification of the law firm.
Here, too, prior disqualification does not require recusal in perpetuity, even in matters involving the same parties, where the reason for the disqualification - namely, a fifth-degree relative's marriage to a party to the proceeding - no longer exists (see Opinions 99-163; 06-91; 93-50).
As it appears the judge does not maintain any social, familial, or other relationship with the fifth-degree relative's ex-spouse, we conclude the judge's impartiality cannot "reasonably be questioned" when the ex-spouse appears as a party (22 NYCRR 100.3[E][1]). The judge therefore may preside in the pending action, provided the judge determines they can be fair and impartial, as the judge is the sole arbiter of recusal.
We note that after a judge's own marital relationship has dissolved and all financial obligations are discharged, the judge must nonetheless disclose the former marital relationship when the judge's ex-spouse appears (see Opinions 22-90; 12-36; 07-99). We decline to impose a similar disclosure obligation for the ex-spouse of the judge's fifth-degree relative.
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1 Although Opinion 06-91 states that the law firm was “disqualified,” we note that Section 100.6(B)(3) more precisely uses the phrase “shall not permit” to refer to the judges’ obligations, as the Rules apply to judges, rather than law firms.