Opinion 19-58


May 2, 2019

 

Digest:         A judge, whose spouse is a principal clerk in the District Attorney’s office, may not preside in matters involving that office unless the judge (a) can be fair and impartial and (b) discloses his/her spouse’s employment relationship. Because disclosure is required in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel in the matter. Otherwise, the judge has full discretion to preside after disclosure, even if a party objects.

 

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(I), (iii); 100.3(E)(1)(e); Opinions 18-06; 12-42; 10-23; 93-28; 90-53; People v Moreno, 70 NY2d 403 (1987).


Opinion:


         The inquiring judge asks if he/she may preside in matters involving the District Attorney’s office employing the judge’s spouse as a principal clerk (a state civil service position). The spouse’s duties include a wide range of administrative responsibilities, such as preparing, maintaining, and scanning files; inputting disposition/sentence information; preparing correspondence; and answering phones.


         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]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). Also, a judge must disqualify him/herself in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge’s spouse has an interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). But, if disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).


         A judge is not automatically disqualified from all matters involving a DA’s office, public defender’s office, or law enforcement agency that employs the judge’s spouse or domestic partner in a strictly clerical capacity (see Opinion 18-06 [DA’s confidential secretary and office administrator]; 12-42 [PD’s confidential secretary]; 10-23 [sheriff’s confidential secretary]; 93-28 [secretary to the narcotics bureau chief]; 90-53 [local police department’s receptionist]). In such instances, we believe, the spouse’s clerical public sector employment “would not be substantially affected by the outcome of any proceeding” before the judge (Opinion 90-53). Accordingly, absent some additional factor requiring disqualification,1 the judge generally may preside, provided the judge concludes he/she can be impartial and discloses his/her spouse’s position (see e.g. Opinion 18-06).


         The same principles apply here. Thus, the judge may preside in matters involving the DA’s office, provided he/she (a) can be fair and impartial and (b) discloses his/her spouse’s employment status. As disclosure is required in lieu of outright disqualification, the judge must disqualify him/herself if any party appears without counsel in the matter. Otherwise, the judge has full discretion to preside after disclosure, even if a party objects (see People v Moreno, 70 NY2d 403 [1987]).


         As a reminder, the judge must also “strictly comply” with prohibitions on ex parte communications when presiding in cases involving the spouse’s public sector employer (see Opinion 12-42; 22 NYCRR 100.3[B][6] [judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of parties or their lawyers concerning a pending or impending proceeding”]).



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1 For example, disqualification is required if the judge’s spouse “offers evidentiary information regarding a proceeding, is likely to be a material witness, has a financial interest in the outcome of the matter, or is a party or attorney to the proceeding” (Opinion 93-28; see e.g. 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][I]; 100.3[E][1][e]).