March 16, 2016
Digest: An appellate judge, whose former law clerk is now a support magistrate, may serve on an appellate panel reviewing a Family Court judge’s decision to grant or deny objections to the support magistrate’s factual and legal determinations. The appellate judge need not disclose the former law clerk relationship.
Rules: Family Court Act § 439(e); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.4(G); 100.6(A); Opinions 14-27; 12-78; 10-107/10-158; 07-04; 99-84.
The inquiring appellate judge’s former law clerk is now a support magistrate. The judge asks whether he/she may participate in reviewing a Family Court judge’s decision to grant or deny objections to a determination of the former law clerk in his/her current capacity as a support magistrate.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge is disqualified in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
The Committee has advised that the relationship between a judge and law clerk is one of particular trust and confidence (see Opinion 07-04). Thus, for a period of one year after a judge’s personal law clerk leaves for private practice, the judge must fully disclose the relationship when the former law clerk or his/her current law firm colleagues appear (see Opinions 14-27; 10-107/10-158 [modifying earlier opinions]; 07-04). After disclosure, the judge has discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case (see id.).
Here, by contrast, the former law clerk is not engaged in the private practice of law; indeed, as a support magistrate, he/she is not permitted to do so (see Opinion 99-84; 22 NYCRR 100.4[G]; 100.6[A]). Instead, the former law clerk is acting in a quasi-judicial capacity, and it is strictly his/her factual findings and/or legal determinations as a support magistrate that are involved in the case. This is a fundamentally different capacity than appearing as a lawyer in a matter.
Given this context, the Committee further notes that an appellate judge is, strictly speaking, reviewing the Family Court judge’s decision to grant or deny a party’s objections to the support magistrate’s determination (see Family Court Act § 439[e] [“The final order of a support magistrate, after objections and the rebuttal, if any, have been reviewed by a judge, may be appealed...”] [emphasis added]). Moreover, the reviewing judge has full authority to “(i) remand one or more issues of fact to the support magistrate, (ii) make, with or without holding a new hearing, his or her own findings of fact and order, or (iii) deny the objections” (id.). Thus, even if the Family Court judge denies the objections in their entirety in a particular case, it is ultimately the Family Court judge -- not the support magistrate -- who bears final decision-making authority with respect to the order appealed from. This further attenuates any possible appearance of impropriety for an appellate judge to review, as one member of a multi-judge appellate panel, a former law clerk’s quasi-judicial factual and legal determinations.
Therefore, an appellate judge has no obligation to disqualify him/herself from a panel reviewing a Family Court judge’s decision to grant or deny objections to a determination of a support magistrate who is the judge’s former law clerk. Nor need the judge disclose the former law clerk relationship.1
1 While the Committee trusts that the judge will disqualify him/herself in any matter where he/she doubts his/her ability to be impartial, the Committee has also “recognized that a judge, due to specialized learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 12-78 [citations and internal quotation marks omitted]).