Opinion: 97-55

May 8, 1997

Digest:  A part-time judge (1) must disqualify himself/herself in any proceeding which may involve a drug and alcohol evaluation and treatment center that accepts referrals from the court and is the lessee of a building co-owned by the judge. (2) need not disqualify himself/herself where the judge served as the attorney for the defendant's parents in an unrelated matter five years earlier.

Rules:  22 NYCRR 100.3(E)(1); 100.3(F); 100.4(D)(1)(b);
             Opinions 96-90 (Vol. XIV); 90-76 (Vol. V).


            A Town Justice is an owner, together with three siblings, of a building that is leased to a drug and alcohol treatment center which provides evaluations and treatment to individuals, including defendants appearing before the judge's court. The judge asks whether recusal is required in all drug or alcohol matters coming before the court or only those in which the lessee issues an evaluation.

            Prior to entering into a lease with the present tenant, the judge sought the opinion of this Committee whether there would be an appearance of impropriety if the prospective tenant performs evaluations in cases pending before the judge or where the judge requires defendants to seek treatment from the tenant. The judge further inquired whether recusal would be necessary for all matters in which the prospective tenant performs evaluations and accepts the defendant for treatment.

            Citing section 100.4(D)(1)(b) of the Rules Governing Judicial Conduct, and Opinion 90-76 (Vol. V) the Committee in Opinion 96-90 (Vol. XIV) stated that the judge was prohibited from leasing the building to any agency that performs evaluations and/or treatment for defendants who appear before the judge. (A copy of Opinion 96-90 is attached hereto and made a part of this opinion).

            However, it now appears that prior to the transmittal to the judge of Opinion 96-90, the judge, together with the co-owners, entered into a lease with the drug and alcohol center. In essence, the questions now asked by the judge are the same as in the earlier inquiry, except that now the prospective tenant is the actual tenant.

            The Committee reaffirms its earlier determination. Further, it is now apparent that the judge must disqualify himself/herself in all cases that may involve the center, regardless of whether the center is performing pre-sentence evaluation or post-sentence treatment. Other comparable facilities should be utilized. In addition, the judge should direct that the Probation Department refrain from using this facility with respect to any defendant who appears before the judge.

            We realize that this opinion may require the judge to exercise recusal in a substantial number of cases. Section 100.4(D)(4) of the Rules addresses that problem and provides the remedy:

(4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases, in which the judge is disqualified. As soon as the judge can do so without serious financial detriment the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.
            Should the judge divest himself/herself of the interest in the property, that would still leave open the question of whether referrals could be made to the center in light of the fact that the judge's siblings remain as co-owners. However, that is not a question presently before the Committee.

            The judge's second question asks whether recusal is required in a criminal matter where the defendant is the adult son of parents who were represented by the judge five years previous. Although not stated by the judge, the Committee assumes that the two matters are entirely unrelated. If that assumption is correct, the Committee is of the opinion that if the judge believes that he/she can be fair and impartial, recusal is not mandated. 22 NYCRR 100.3(E)(1).