September 10, 2015
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A village justice may continue as a client of a salesperson whose spouse is the village prosecutor. Unless the relationship is substantially more than an ordinary salesperson-customer relationship, the judge may preside over cases where the salesperson’s spouse appears as village prosecutor without disclosure or disqualification, provided the judge can remain fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); 100.4(D)(1)(a)-(c); Opinions 13-64; 12-107; 11-125; 11-64; 11-45; 09-138; 92-22; 88-60; People v Moreno, 70 NY2d 403 (1987).
A part-time village justice is a client and friend of a salesperson who receives a commission on the judge’s department store purchases. The salesperson’s spouse has become the village prosecutor. The judge asks whether he/she may continue to engage in this ongoing business relationship and whether he/she must disclose or disqualify when the village prosecutor appears.
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]). A judge must not allow family, social, or other relationships to influence the judge (see 22 NYCRR 100.2[B]) or permit anyone to convey they are specially positioned to influence him/her (see 22 NYCRR 100.2[C]). A judge must not engage in financial and business dealings that (a) may reasonably be perceived to exploit his/her judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before him/her; or (c) involve the judge in frequent transactions or continuing business relationships with lawyers or others likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][a]-[c]). Where, as here, no specifically enumerated disqualifying circumstances apply (see generally 22 NYCRR 100.3[E][a]-[f]); Judiciary Law § 14), a judge must nonetheless disqualify him/herself in a proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
With respect to the judge’s first question, the Committee has advised that “a routine business transaction, or even an arms’-length business negotiation, is not rendered suspect merely because the seller manifests an awareness that the purchaser is a judge” or quasi-judicial official (see Opinion 12-107). In the unusual circumstances described in Opinion 12-107, a support magistrate was negotiating to purchase an expensive leisure item from a seller who spontaneously referred to the support magistrate’s prior favorable decision. To dispel any possible risk that the transaction “could create an appearance of an attempted quid pro quo, i.e., that the seller wishe[d] to reward [him/her] for a favorable decision” (see id.), the Committee advised the support magistrate to ascertain and record the approximate fair market value of the item so there could be no reasonable perception that the transaction was a disguised gift or otherwise inappropriate (see id.; see also 22 NYCRR 100.4[D][a]-[b]).
Here, by contrast, the department store transactions described appear to be entirely routine and cannot reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][a]-[b]). Significantly, although the salesperson’s spouse may regularly appear before the judge’s court, the inquiry does not suggest that the salesperson is likely to do so (see 22 NYCRR 100.4[D][c]). The Committee can see no impropriety here, and thus the inquiring village justice may continue to engage in an ongoing business relationship with a salesperson whose spouse has become the village prosecutor.
With respect to the judge’s second question, the Committee has recognized that “judges, in their capacities as private citizens, routinely engage in countless everyday purchases ... [that] do not ordinarily require a judge’s disqualification” (see Opinion 12-107) because they do not create an objectively reasonable basis to question a judge’s impartiality (see 22 NYCRR 100.3[E]). Thus, for example, the Committee has advised that a judge ordinarily need not disqualify him/herself in matters involving crimes committed at a store where the judge shops (see Opinion 88-60). Moreover, the Committee has advised that a judge is ordinarily in the best position to assess whether his/her impartiality might reasonably be questioned when an attorney whom the judge knows socially and with whom the judge is acquainted appears before him/her (see Opinion 11-125). To that end, a judge should take into account the nature of his/her relationship with the attorney; the inter-relationships, if any, among and between their close family members; the frequency and context of their contacts; and any financial or political ties or confidences shared between them or among their family members (see id.; see also Opinions 11-45; 92-22).
Applying these principles, the Committee believes a cordial social and business relationship between the judge and a salesperson, without more, is not a reasonable basis to question the judge’s impartiality when the salesperson’s spouse appears as village prosecutor (see 22 NYCRR 100.3[E]). Accordingly, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ), and neither disclosure nor disqualification is required when the village prosecutor appears, provided the judge can be fair and impartial.
Of course, if the judge concludes the relationship is substantially more significant than an ordinary salesperson/customer relationship, rising to the level of a close social relationship that encompasses the salesperson’s spouse, the judge should consider disqualification, subject to remittal, when the spouse appears as village prosecutor (see generally Opinion 11-125).1 Moreover, 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).
1 Where permitted, 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 the judge may preside. Third, the judge must independently conclude he/she can be impartial and is willing to preside. If all three steps are satisfied, the judge may accept remittal and must incorporate the parties’ and their attorneys’ agreement in the record (see Opinion 09-138; 22 NYCRR 100.3[F]). If a party appears without counsel or the judge is unable or unwilling to make full disclosure on the record, remittal is unavailable (see Opinion 13-64).