Opinion 25-67

May 15, 2025

Digest:  A judge whose spouse is a county legislator may preside over mental hygiene matters where the county often appears as a party, provided that the county legislature is not a named party, the judge’s spouse is not personally involved in the matter, and there are no other factors that would create an appearance of impropriety.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)(i), (ii); 100.3(E)(1)(e); Opinions 19-92; 18-12.

Opinion:

          A judge whose spouse is a county legislator asks if he/she may preside over mental hygiene matters where the county often appears as a party.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge’s spouse “is a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]), “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]), or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]).

          A judge whose spouse is a county legislator is disqualified in cases where county legislature is a named party (see Opinion 18-12; see also Opinion 19-92 [applying the same principles where a judge’s first-degree relative is a city’s mayor]).  However, a “judge ordinarily need not recuse him/herself in other cases involving county departments, entities, or employees, merely based on the spouse’s service as county legislator, provided the judge’s spouse has no personal involvement in the case before him/her and absent additional factors that would create an appearance of impropriety” (Opinion 18-12).  For example, a judge need not disqualify from presiding over challenges to a county law, ordinance, or code, “merely because the judge’s legislator spouse publicly took a position supporting or opposing it” (id.).  The judge also need not disqualify from “county-related matters over which his/her legislator spouse previously exercised some quantum of oversight or expressed criticism or praise, again provided the spouse has no personal involvement in the case before the judge” (id.).

          Accordingly, we conclude that the inquiring judge may preside over mental hygiene matters where the county often appears as a party, provided that the county legislature is not a named party, the judge’s legislator spouse is not personally involved in the matter, and there are no other factors that would create an appearance of impropriety.