January 28, 2021
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: Where a judge’s spouse supervises assistant county attorneys in family court neglect and abuse cases, and a criminal case before the judge has material and relevant connections to a family court neglect and abuse case:
(a) if the judge’s spouse is either directly involved or supervising assistant county attorneys in the “related” case, the judge must disclose the connection and their spouse’s role, but need not disqualify unless a party is appearing without counsel; and
(b) if the judge is satisfied that their spouse has no supervisory or direct involvement in the “related” family court case, the judge may preside without disclosure.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 19-148(A); 19-13; 18-02; 17-150; 17-10; 14-07; People v Moreno, 70 NY2d 403 (1987).
The inquiring full-time judge presides in many criminal cases. The judge’s spouse is an assistant county attorney who supervises attorneys assigned to the social services department to handle neglect/abuse cases in family court. Although these assistant county attorneys do not appear in the judge’s court, sometimes allegations in a family court neglect/abuse case handled by the spouse’s unit also form the basis for a criminal charge in the judge’s court.1 If the connection is evident on the face of the papers, the judge anticipates the court clerk will ordinarily assign these cases to a co-judge. But the judge anticipates that, in some instances, the judge will nonetheless be assigned a criminal case that proves to have material and relevant connections to a family court abuse and neglect case. The judge asks about two scenarios where that may occur:
1. What are the judge’s obligations if the judge is satisfied that the county attorney (rather than the judge’s spouse) is personally supervising the assistant county attorney handling the related family court case?
2. What are the judge’s obligations if their spouse is personally handling or is supervising another assistant county attorney handling a related family court case?
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 NYCRRR 100.2[A]). A judge must disqualify in matters where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including when the judge’s spouse is “acting as a lawyer” in the proceeding (22 NYCRR 100.3[E][e]). Moreover, where the spouse is likely to appear in the courtroom, disqualification is not subject to remittal (see 22 NYCRR 100.3[F]). If the judge doubts their own ability to be fair and impartial in a particular matter, they must not preside.
1. Judge’s Spouse Is Effectively Insulated from the “Related” Case
In the first scenario, the case before the judge has material and relevant connections with a family court abuse and neglect case, but the judge is satisfied that the county attorney (rather than the judge’s spouse) is personally supervising the assistant county attorney(s) handling the family court case.
Where the judge’s spouse has neither supervisory nor direct involvement in the related family court case, neither disclosure or disqualification is mandated (see Opinions 19-148[A] [where judge’s spouse has no involvement in the case before the judge, the judge need not disclose or disqualify, provided the judge can be fair and impartial]; 17-150 [where judge’s first-degree relative is not involved in a matter personally or as a supervisor, and is not the attorney of record, the judge may preside without disclosure or disqualification in matters involving the same office]).
Accordingly, the judge may preside without any disclosure when they are satisfied their spouse has absolutely no involvement with the “related” family court case.
2. Judge’s Spouse Is Involved with the “Related” Case
In the second scenario, the case before the judge has material and relevant connections with a family court abuse and neglect case, and the judge’s spouse is personally involved in the family court matter, either directly or in a supervisory capacity.
Ordinarily, if a judge knows his/her spouse has any involvement as a lawyer in a case before the judge, either personally or in a supervisory capacity, the judge is disqualified (see Opinions 19-148[A]; 19-13; 17-150; 22 NYCRR 100.3[E][e]). Here, however, neither the spouse nor anyone from the county attorney’s office is involved in the criminal action pending before the judge.
We thus liken this circumstance to the scenario raised in Opinion 19-148(A), where the judge asked about defendants potentially appearing before the judge who were previously respondents in neglect/abuse or family offense proceedings that the judge handled as an assistant county attorney. That is, if the judge concludes that the charges from the family court proceeding are materially relevant to the matter before him/her, the judge must disclose the connection between the two cases (see e.g. Opinions 17-10; 14-07; 18-02), including that his spouse handles or supervises attorneys in the related proceeding. Because disclosure is mandated in lieu of outright disqualification, the judge must simply disqualify if any party is unrepresented (id.). Otherwise, after disclosure, assuming the judge can be fair and impartial, the judge has full discretion to preside even if a party objects (id.; cf. People v Moreno, 70 NY2d 403 ).
1 For example, a charge of endangering the welfare of a child.