January 29, 2015
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 judge may preside in cases of protestors, arrested on the same charges as the judge’s second-degree relatives, where the judge’s relatives are not parties and are unlikely to be material witnesses, provided the judge can be fair and impartial.
Rules: Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(d)(I), (iii); 100.3(E)(1)(e); 100.3(F); Opinions 13-64; 12-75; 02-54; 90-20 (Vol. V); People v Moreno, 70 NY2d 403 (1987).
A judge states that certain individuals in his/her community have engaged in protests concerning a controversial issue. Although the judge is not personally involved in the protest, the judge is aware that some protestors, including one or more of the judge’s second-degree relatives1, were arrested. The judge will not preside in any cases of his/her relatives, and believes it unlikely a family member will be a witness before the judge, but asks if he/she may preside in cases of other protestors, charged with the same offense(s) as the judge’s relatives. The judge has “played no role in the public discussion of the matter” and is “not privy to any information concerning the protests other than what is reported in the news.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, 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]), must not initiate, permit, or consider ex parte communications concerning a pending or impending proceeding (see 22 NYCRR 100.3[B]), and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]); or in other specific circumstances required by rule or by law (see generally id.; Judiciary Law §14). For example, a judge may not preside if the judge knows that a person within the sixth degree of relationship to the judge by blood or marriage “is a party to the proceeding” or “has an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][d][I], [iii]), or that a person within the fourth degree of relationship to the judge by blood or marriage “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][e]). Conversely, where disqualification is discretionary, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
Here, the judge’s relatives, arrested in connection with the protests, are related to the judge by blood or marriage as second-degree relatives. Thus, as the inquiring judge recognizes, the judge is disqualified from presiding in any case where such relatives are parties to the proceeding or are likely to be material witnesses in the proceeding (see 22 NYCRR 100.3[E][d][I] [sixth-degree relative is a party]; 100.3[E][e] [fourth-degree relative is likely to be a material witness]).2 If the relative is a party, the judge’s disqualification is not subject to remittal and the judge simply must disqualify him/herself (see Opinion 13-64; 22 NYCRR 100.3[F]). Conversely, if the relative is not a party, but only a “likely material witness,” the judge’s disqualification is subject to remittal (see id.).3
Of course, the sole question here is whether the judge may preside in cases involving other protestors, who may have been arrested on the same charges as the judge’s second-degree relatives, but under circumstances where the judge’s relatives are not defendants and are not likely to be material witnesses. The Committee has advised that, provided the judge can remain fair and impartial, and absent any other disqualifying factor, a judge may preside in cases involving individuals charged with the same statutory offenses for which the judge him/herself was previously tried and acquitted (see Opinion 02-54) or in a case involving legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters (see Opinion 12-75). Moreover, in Opinion 90-20 (Vol. V), the Committee advised that a judge may preside in a case involving civil disobedience demonstrators charged with disorderly conduct, even though the judge’s spouse supports the same cause,4 provided the judge can be impartial:
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/she] is confident that [he/she] can be impartial, and will not be subject to pressures that might undermine [his/her] impartiality.
Applying these principles here, the Committee likewise believes this judge’s impartiality cannot reasonably be questioned merely because his/her second-degree relatives participated in the same protest and were charged with the same offenses as the protestors now before the judge (see 22 NYCRR 100.3[E]; Opinions 12-75; 02-54; 90-20 [Vol. V]). Accordingly, the Committee believes the judge may preside in cases involving other protestors charged with the same offenses as the judge’s relatives, provided the judge concludes he/she can be fair and impartial, a matter confined to the judge’s sole discretion (see People v Moreno, 70 NY2d 403 ).
1 Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see generally 22 NYCRR 100.3[E][d],[e]).
2 The second degree of relationship is “within” the fourth degree of relationship and the sixth degree of relationship.
3 The Committee has advised that remittal is not available if any party is appearing without counsel, or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see Opinion 13-64). Where available, remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.).
4 Opinion 90-20 (Vol. V) is not entirely on point, because although the judge’s spouse supported the same cause as the arrested protestors, there is no indication that the judge’s spouse was arrested for disorderly conduct (see Opinion 90-20 [Vol. V]).