Opinion 13-46

April 25, 2013


Digest:         A judge is not disqualified from presiding over a matter wherein the county is a party, solely because the county is a tenant of a judge’s first-degree relative, provided the case does not involve matters directly pertaining to the tenancy or the landlord-tenant relationship.


Rules:          Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 13-24; 11-64; 10-60; Joint Opinion 07-105/07-119; People v Moreno, 70 NY2d 403 (1987).


         A full-time judge states that a particular agency or department of the county government is a tenant of the judge’s first-degree relative.1 The judge notes that he/she often presides over matters involving various county agencies or the county itself as plaintiff or defendant, such as social services cases and guardianship matters involving the county. In light of Opinion 13-24, the judge asks if he/she must recuse in all matters wherein the county and its various agencies/departments are parties.

         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]). Therefore, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         There are two initial objective questions to consider when determining if disqualification is required. The first is whether disqualification is mandated by the specific circumstances in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         Applying these principles here, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).

         For the second question, it is noted the county is a large, multifaceted political subdivision of New York State functioning differently, as a tenant, from private and non-governmental entities.2 Though this inquiry seems to be an issue of first impression, the Committee has previously advised that judges within a judicial district are not disqualified in matters involving a “landlord who owns the building that houses the administrative offices of the judicial district[,]” and also need not disclose the landlord/tenant relationship (Opinion 10-60). Here too, the Committee believes these circumstances do not create any objectively reasonable basis to question the judge’s impartiality in routine matters where the county or its agencies/departments appear (see 22 NYCRR 100.3[E][1]), if such matters do not involve its tenancy, nor directly affect the county’s ability to pay the rent.

         Thus, for cases not directly involving the tenancy, the inquiring judge may preside in matters in which the county appears as a party if the only basis to object is that the county is a tenant of the judge’s first-degree relative (see People v Moreno, 70 NY2d 403, 405 [1987] [judge “is the sole arbiter of recusal”]).


     1 First-degree relatives of a judge include parents, step-parents, children, and step-children (see generally 22 NYCRR 100.0[C]).

     2 The Committee has previously recognized certain significant distinctions between private and public employment for the purposes of the Rules Governing Judicial Conduct (see e.g. Joint Opinion 07-105/07-119 [distinguishing between prior employment with a private law firm and prior employment with a public law office]).