June 30, 2022
Digest: Where a judge’s ex-spouse is a law enforcement officer who issued the accusatory instrument for a Vehicle and Traffic Law charge, but any financial obligations between the judge and their ex-spouse have been discharged, the judge (1) must disclose the former marital relationship but (2) may thereafter preside, provided the judge can be fair and impartial. This disclosure obligation does not expire.
Rules: 22 NYCRR 100.2; 100.2(B); 100.2(C); 100.3(E)(1); Opinions 19-162; 19-51; 15-08; 12-36; 10-160; 10-99.
The inquiring judge was married for several years to a law enforcement officer, during which time the judge recused from cases involving traffic tickets issued by their spouse. The divorce was finalized earlier this year. The couple did not have any children and they have no further social or financial connections. The judge asks if there is “a time frame in which I may start to handle” cases in which the ex-spouse is involved.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Thus, for example, a judge must not “allow family … or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) and must not “convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). Moreover, a judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including where required by rule or law, and if the judge doubts their own ability to be impartial (see e.g. Opinion 10-160).
Where a judge is currently married to a law enforcement officer, the judge is disqualified from Vehicle and Traffic Law matters in which their spouse is the issuing officer of a traffic infraction, and remittal is unavailable (see Opinions 19-162; 19-51).
Here, by contrast, the divorce decree is final and no financial obligations remain between the former spouses. In Opinion 12-36, we considered circumstances in which a judge’s ex-spouse was a prosecutor who could potentially appear in the judge’s court. Specifically, after the financial obligations between the ex-spouses were discharged, we said “the judge must disclose the former marital relationship when his/her ex-spouse appears before him/her” (Opinion 12-36). After disclosure, the judge may preside if the judge can be fair and impartial, and retains full discretion even if a party objects. We see no distinction between the case of an ex-spouse who is a prosecutor and an ex-spouse who, as a law enforcement officer, may potentially be a complainant or witness in a matter before the judge.
Because Opinion 12-36 did not discuss any possible time limit or expiration of the disclosure requirement, we now address whether the disclosure obligation may be dispensed with after the passage of a fixed period of time.
We have on occasion imposed a disclosure requirement without a sunset provision after a recusal obligation ended. For example, where an attorney personally represented the judge in a matrimonial matter, or personally represented the judge’s ex-spouse against the judge, we required disqualification for two years after the attorney-client relationship completely ended, and then disclosure for an indefinite period thereafter (see Opinions 15-08; 10-99).1
We conclude that, after financial duties between former spouses are discharged, the judicial spouse need only disclose the prior relationship, but may preside so long as they do not doubt their ability to be impartial (see Opinions 15-08; 12-36). However, the obligation to disclose in matters where the judge’s ex-spouse is personally involved continues during the judge’s term of office.
1 Although the disclosure obligation in such matters is of indefinite duration, we have nonetheless set forth certain factors for a judge to consider in determining how long to disclose the former attorney/client relationship (see Opinion 15-08 fn 6).