Joint Opinion 15-35 and 15-75
April 23, 2015
Digest: The fact that a judge’s first-degree relative was killed by a driver who was charged with driving under the influence, or that a judge him/herself was previously a victim of domestic violence, does not, by itself, require disqualification of the judge in cases involving persons charged with the same statutory offenses that caused injury to the judge or the judge’s first-degree relative, provided the judge concludes he/she can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(a)-(f); Opinions 14-141; 11-64; 11-34; 02-54; 88-16; People v Moreno, 70 NY2d 403 (1987).
In Inquiry 15-35, the judge states his/her first-degree relative1 was killed some years ago by a driver who was charged with driving under the influence of drugs or alcohol (DUI). The media covered the case, and the judge (not then a judge) was interviewed during the trial.2 He/she now asks if he/she may preside in DUI cases, including cases where an accused driver was allegedly under the influence of the same substance involved in the judge’s relative’s death. In Inquiry 15-75, the inquiring judge says he/she was previously a victim of domestic violence, ending several decades ago. The judge believes he/she can be fair and impartial in cases involving domestic violence allegations, but asks if he/she may now preside in such cases.
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]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14), including when the judge has a “personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][a][i]).3
The Committee has advised that, if the judge can remain fair and impartial, a judge who had been charged with speeding and driving while intoxicated and was acquitted after trial is not precluded from presiding over cases involving individuals charged with violating the same statutes (see Opinion 02-54). By contrast, a judge who is currently a defendant in a criminal case involving domestic violence charges should not preside over other domestic violence cases during the pendency of his/her own case and, if convicted, during the term of any sentence that may be imposed (see Opinion 14-141). However, once the judge is acquitted or, if convicted, once the judge completes his/her sentence and any period of probation, the judge may then preside over other domestic violence cases provided the judge concludes he/she can be fair and impartial (see id.). As the Committee has explained, “there is no per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses previously faced by the judge” (see Opinion 14-141, quoting Opinion 02-54).
The situations here appear to raise precisely the inverse question: Is there a per se prohibition barring a judge from presiding over cases involving persons charged with the same statutory offenses which caused injury to the judge or the judge’s first-degree relative? On this topic, the Committee has similarly advised that a judge who was injured by an intoxicated driver while he/she was a college student, and has subsequently engaged in educational or treatment activities concerning alcoholism and substance abuse, is not disqualified from presiding over DWI cases and need not disclose such activities if the judge believes he/she can be completely impartial (see Opinion 88-16).4
Here, too, the Committee believes the inquiring judges’ impartiality cannot reasonably be questioned in all cases involving persons charged with the same kinds of statutory offenses that caused injury to the judge or the judge’s first-degree relative several years ago (see 22 NYCRR 100.3[E]; Opinion 88-16; cf. Opinions 14-141; 02-54). Accordingly, each inquiring judge “is the sole arbiter of recusal” in such matters, and “[t]his discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 ).
Thus, if the judge - who lost a first-degree relative due to a driver who was operating a vehicle under the influence of drugs or alcohol - can be fair and impartial, he/she need not disclose nor disqualify him/herself from all DUI cases, regardless of the type of substance involved (Inquiry 15-35); and a judge, previously a domestic violence victim, need not disclose nor disqualify him/herself in all cases of domestic violence claims (Inquiry 15-75).
Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see 22 NYCRR 100.3[E][a][i]; Opinion 11-64).
1 A first-degree relative by blood or marriage includes a child, step-child, parent, or step-parent (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]).
2 It appears that the case concluded more than two years ago, and is no longer pending or impending.
3 There are two initial objective tests to determine if disqualification is mandatory. The first question is whether disqualification is required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law § 14. Where, as here, no specific provision mandates disqualification, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under either objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
4 Opinion 11-34, which involved a Court of Claims judge whose close relative, recently injured by a New York State Trooper, was considering filing a notice of claim against the State of New York, is not to the contrary. In addition to the unique characteristics of the Court of Claims, the Committee notes that all of the obligations set forth in Opinion 11-34, once triggered, terminated two years after the date that the judge’s relative’s claim or lawsuit concluded (see Opinion 11-34).