Opinion: 98-26

June 19, 1998

Digest: Under the circumstances presented, a judge who has disqualified himself/herself in cases involving a lawyer who is a friend, may but is not required to invoke the procedures for remittal of the disqualification under section 100.3(F) of the Rules Governing Judicial Conduct.

Rule:  Jud. Law §14; 22 NYCRR 100.3(E)(1)(a)-(f);
           100.3(F); Matter of Robert, 89 N.Y.2d 745 (1997);
          Casterella v. Casterella, 65 A.D.2d 614 (2d Dept., 1978);
          Matter of Robert, 1996 WL 556918 (N.Y. Comm'n Jud Conduct).


            A judge asks the following question:

If a Judge under [section] 100.2(A) [of the Rules Governing Judicial Conduct] determines that a case over which he is presiding involved a "close personal friend" making it "improper" to preside under the Court of Appeals decision in Matter of Ronald C. Robert is this determination subject to a remittal for disqualification procedure under 100.3(F) or is it a "per se" prohibition based on Robert.?

            In posing the question, the inquiring judge informs the Committee that prior to the decision in Robert, it had been the judge's practice to disqualify himself/herself in

". . . matters before this Court when a party is represented by an attorney based on a friendly relationship. The lawyer in question has been advised of this reason and his cases have been handled by the other judge of this Court. This decision was based on a matter of personal conscience by this judge as the "sole arbiter of recusal."

            The judge further informed the Committee that the friend had provided the judge with certain political information in connection with the judge's candidacy for re-election, and the judge told the friend that he/she was "eternally grateful."

            The reference by the judge is to the Court of Appeals decision in Matter of Robert, 89 N.Y.2d 745 (1997), in which the Court accepted the determination of removal by the State Commission on Judicial Conduct ("Commission") of a town court judge. As stated by the Court (89 N.Y.2d at 747):

We conclude, after a full review of the record, that each of the charges is established. It was improper for petitioner to preside over cases involving his close friends (see, e.g., Matter of Murphy, 82 NY2d 491, 495, 605 N.Y.S.2d 232, 626 N.E.2d 48; Matter of Fabrizio, 65 NY2d 275, 491 N.Y.S.2d 144, 480 N.E.2d 733). We note that petitioner continues to fail to comprehend the serious nature of his conduct. Petitioner testified at the hearing that he intended to continue presiding over matters involving his friends, . . . . The fact that the misconduct continued even after petitioner was on notice that the Commission considered his actions improper demonstrates that he is not fit for judicial office [citations omitted].

            The determination of the Commission (Matter of Robert, 1996 WL 556918 (Comm'n Jud Conduct), rested upon the failure of the respondent judge to disqualify himself in numerous cases involving close friends. One friend was a State Trooper "with whom the judge took trips, went fishing, regularly had coffee and visited in his home." Id. at p. 3. The other friendships also involved "hunting and fishing and other trips, personal favors and socializing in homes and restaurants." Id. at p. 3. At the hearing the judge testified "that he did not believe it improper for him to preside over cases involving Trooper Redwood and the Panos family, and he said he would not disqualify himself from such cases in the future." In none of the cases did the judge disclose the relationship.

            Rejecting the argument that, notwithstanding the friendships, there had been no showing of favoritism or prejudice, the Commission stated (Id. at p. 3):

It is beside the point that none of the litigants complained about these relationships -- a fact that respondent did not divulge -- and that he showed no favoritism or prejudice, as respondent has testified was the case. The Rules Governing Judicial Conduct counsel a judge to avoid even the appearance of impropriety (22 NYCRR 100.2), and they require disqualification whenever the judge's impartiality is in question. Respondent is unable to make the distinction between the fact of bias and its appearance.
Judges have been sanctioned for presiding in cases involving friends or others with close associations, even when there is no evidence of favoritism. (See, Matter of Fabrizio v. State Commission on Judicial Conduct, 65 NY2d 275 [judge presided over small claims case brought by his dentist of ten years]; Matter of Wright, 1989 Ann Report of NY Commn on Jud Conduct, at 147 [judge decided, inter alia, motions in housing matter involving tenant on whose behalf he had written letters eight years earlier]; Matter of Merkel, 1989 Ann Report of NY Commn on Jud Conduct, at 111 [judge presided over case in which her court clerk was complaining witness]; Matter of Mills, 1985 Ann Report of NY Commn on Jud Conduct, at 196 [judge arraigned a defendant five days after they had engaged in sexual relations]).
            It is against this background that the inquirer poses the question before the Committee. The question, however, somewhat misstates the significance of Robert, and fails to distinguish between the various bases for disqualification. For neither in the Commission's determination nor in its acceptance by the Court of Appeals is there any indication that disqualification based upon friendship of a judge with a litigant or lawyer or witness is not subject to remittal.

            Section 100.3(E) begins by providing that "(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:" What follows in subparagraphs (a) through (f) is essentially an elaboration and particularization of instances where, if found to be present, the conclusion must be reached that the judge's impartiality might reasonably be questioned. And, of those instances particularized, only in certain specified situations is remittal of disqualification not available under section 100.3(F), which reads as follows:

(F) Remittal of Disqualification. A judge disqualified by the terms of subdivision (E), except subparagraph (1)(a)(i), subparagraph (1)(b)(i), or (iii) or subparagraph (1)(d)(i) of this section, may disclose on the record the basis of the judge's disqualification. If, following such disclosure of any basis for disqualification, the parties who have appeared and not defaulted and their lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

            Thus, under the Rules, remittal is not available where (1) "the judge has a personal bias or prejudice concerning a party" (22 NYCRR 100.3[E][1][a][i]); or (2) the judge knows that he or she "served as a lawyer in the matter in controversy" (22 NYCRR 100.3[E][1][b][i]) or "has been a material witness concerning it;" (22 NYCRR 100.3[E][1][b][iii]), or (3) the judge knows or the judge's spouse or a person known to be within the sixth degree of relationship to either of them, or such person's spouse is a party to the proceeding (22 NYCRR 100.3[E][1][d][i]).

            Additionally, section 14 of the Judiciary Law sets forth grounds for disqualification which overlap certain provisions of section 100.3(E) of the Rules, and which, it has been held, are jurisdictional and therefore not waivable. See Casterella v. Casterella, 65 A.D.2d 614, 615 (2d Dept. 1978). Those include matters in which the judge is a party, or in which he had been an attorney, or in which he has an interest, or is related to a party, within the sixth degree. Jud. Law §14. But neither Judiciary Law §14 nor the exclusions from remittal referred to in §100.3(F) are applicable to the situation presented in the inquiry or in Matter of Robert. Other circumstances requiring disqualification, whether specified elsewhere in subparagraphs (a) through (f) or otherwise deemed to require disqualification under §100.3(1), as in Robert, do allow for remittal.

            It should be emphasized that remittal presumes disqualification. There can be no remittal unless the judge is disqualified. In such circumstances where remittal is permissible, a judge who is disqualified may but is not required to invoke the procedures specified in section 100.3(F), which may result in the judge presiding over the matter. Here, the judge has concluded that he/she is disqualified. Should the judge now opt for remittal, the judge is, of course, obligated to state the basis of the disqualification including the judge's expression of eternal gratitude to the friend. But the judge is equally free not to invoke remittal if the judge concludes that, at best, impartiality is doubtful and that in view of the relationship the judge is simply not "willing to participate" (22 NYCRR 100.3[F]), in any matter involving this particular friend. In short, remittal requires not only disclosure and consent of the parties and their attorneys, but the belief of the judge in his or her impartiality and the willingness to participate in the matter. Absent any of the required elements there can not be a remittal of the disqualification and the judge therefore remains disqualified.