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March 2005
Fair Trials and the Recusal of Judges
By Joel R. Brandes and Bari Brandes
Corbin
One of the most perplexing problems that a matrimonial attorney will face
is deciding whether or not to take the chance of antagonizing the judge and
moving for his or her recusal. Although a judge may act gruff, be
antagonistic or treat the attorney poorly, this is not a basis for recusal,
even though it may be a basis for judicial discipline. (The Canons of
Judicial Conduct, 22 NYCRR 100.3 (B) (3), provide: 3) A judge shall be
patient, dignified and courteous to litigants, jurors, witnesses, lawyers
and others with whom the judge deals in an official capacity, and shall
require similar conduct of lawyers, and of staff, court officials and others
subject to the judge's direction and control.) Absent a statutory basis for
disqualification a judge is generally the sole arbiter of recusal.
People v. Moreno, 70 NY2d 403 (1987); see also People v. Smith,
63 NY2d 41, 68 (1984) (noting that recusal is generally "a matter of
personal conscience.").
Statutory Grounds for Recusal
Judiciary Law
§
14 provides, in part, that "[a] judge will not sit as such in, or take any
part in the decision of, an action, claim, matter, motion or proceeding to
which he is a party, or in which he has been attorney or counsel, or in
which he is interested, or if he is related by consanguinity or affinity to
any party to the controversy within the sixth degree." The only portion of
Judiciary Law § 14
which could possibly serve as grounds for disqualification in most
matrimonial cases is that the judge is "interested." However, the "interest"
indicated in Judiciary Law
§ 14 is a pecuniary or property interest in the proceeding or
motion." People v. Lewis, 165 Misc.2d 814 (Sup. Ct., Kings
Cty.1995), citing People v. Capuano, 68 Misc.2d 481 (Monroe Cty.
Ct., 1971); Matter of Hancock, 91 N.Y. 284 (1883). Where there is
no showing that the judge stands to "profit or gain by any decision" in the
case, "interest" is not established. People v. Lewis, supra, at
819.
In the absence of a violation of these express statutory provisions, bias
or prejudice or unworthy motive on the part of a judge, unconnected with an
interest in the controversy, is not cause for disqualification, unless it is
shown to affect the result. As stated in People v. Patrick, 183
N.Y. 52, 54 (1905), absent a legal disqualification with regard to an
objection of "impropriety as distinguished from legal disqualification, the
judge himself is the sole arbiter." This discretionary decision is within
the personal conscience of the court when an alleged appearance of
impropriety arises from inappropriate awareness of "nonjuridical data."
People v. Horton, 18 N.Y.2d 355 (1966); see also People v. Smith,
supra. When the alleged impropriety arises from information derived
during the performance of the court's adjudicatory function, then recusal
can not be directed as a matter of law. A court's decision may not be
overturned unless it is an abuse of discretion. People v. Tartaglia,
35 N.Y.2d 918 (1974; People v. Horton, supra.
The reasoning behind this rule is that, unlike a lay jury, a judge, "by
reasons of ... learning, experience and judicial discipline, is uniquely
capable of distinguishing the issues and of making an objective
determination" based upon appropriate legal criteria, despite awareness of
facts which cannot properly be relied upon in making the decision.
People v. Brown, 24 N.Y.2d 168 (1969). Recognizing this key premise,
"it suffices to say that there is no prohibition against the same judge
conducting a pretrial hearing as well as the trial itself." People v. De
Curtis, 63 Misc.2d 246 (2d Dept. 1970), affd. 29 N.Y.2d 608 (1971)
(Suppression hearing justice not disqualified from presiding over nonjury
trial); see also People v. Brown, supra (Huntley hearing justice
may preside over nonjury trial.); People v. Latella, 112 A.D.2d 324
(2d Dept. 1985) (Sandoval hearing judge not disqualified from presiding at
nonjury trial.). Even the court's appointment of special prosecuting counsel
(People v. Smith, supra); prior association with a law firm
employed by a party (Corradino v. Corradino, 48 N.Y.2d 894 (1979));
past prosecution of the defendant, (People v. Tartaglia, supra;
People ex rel. Stickle v. Fay, 14 N.Y.2d 683 (1964); contra, People
v. Corelli, 41 A.D.2d 939 (2d Dept. 1973)); or past professional
affiliation in a field specialized in by a party, (Matter of Rotwein,
291 N.Y. 116 (1943)), do not require the disqualification of a trial
justice.
Bias, Prejudice, or Appearance of Impropriety
It has been noted that it may be the better practice in some situations
for a court to disqualify itself in a special effort to maintain the
appearance of impartiality. Corradino v. Corradino, supra. However, when
recusal is sought based upon "impropriety as distinguished from legal
disqualification, the judge ... is the sole arbiter." People v. Patrick,
supra; see also eg, People v. Bartolomeo, 126 A.D.2d 375 (2d
Dept. 1987), lv. denied 70 N.Y.2d 702 (1987) (Kaye, J.); Matter of
Johnson v. Hornblass, 93 A.D.2d 732 (1st Dept. 1983).
In People v. Zappacosta, 77 A.D.2d 928 (2d Dept. 1980), the
Second Department noted the presence of an "amalgam of peculiar
circumstances" which required recusal despite a recognition of the rule that
"there is no general prohibition against the same judge conducting a bench
trial as conducted preliminary hearings on the admissibility of evidence."
The trial justice, during the plea allocution of Zappacosta's codefendant
wife, actively elicited information that incriminated Zappacosta. The
information was not necessary to taking the wife's plea, but "constituted
information on the ultimate issue of appellant's guilt which the court, as
trier of fact, would not otherwise have had." In analogizing to the rule
that permits an individual who withdraws a guilty plea to request a trial
before a different judge, and noting its sensitivity to avoiding the
appearance of partiality, the Appellate Division held in the exercise of its
review function that defendant's recusal motion should have been granted.
In Matter of Johnson v. Hornblass, supra, the court noted that
"[i]n the absence of a violation of express statutory provisions, bias or
prejudice or unworthy motive on the part of a judge, unconnected with an
interest in the controversy, will not be a cause of disqualification, unless
shown to affect the result." Insofar as the purportedly prejudicial
information in that case was acquired through the court's performance of its
adjudicative responsibilities, the precatory suggestion for recusal as the
"better practice" had no applicability. "The alleged bias and prejudice to
be disqualifying must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from
his participation in the case." U.S. v. Grinnell Corp., 384 U.S.
563 (1966); see also, Berger v. U.S., 255 U.S. 22 (1921) ("bias or
prejudice which can be urged against a judge must be based upon something
other than rulings in the case"); People v. Moreno, supra.
Although there may not be a legal basis for a judge to be disqualified
pursuant to Judiciary Law
§ 14, Canon 2 of the Code of Judicial Conduct requires that a judge
"avoid impropriety and the appearance of impropriety." Canon 3 C (1) calls
on the judge to disqualify himself when his "impartiality might reasonably
be questioned." It provides in pertinent part that: "A judge should
disqualify himself in a proceeding in which his impartiality might
reasonably be questioned, including but not limited to instances where: a)
he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding." Judicial
proceedings should never be conducted in a manner and under circumstances
that do not reflect complete impartiality. Not only must there be no
partiality in fact, even the appearance of partiality is to be avoided.
Matter of Johnson v Hornblass, supra. The Code of Judicial Conduct
requires a Judge's recusal when his or her "impartiality might reasonably be
questioned. 22 NYCRR 100.3 (c)(1). This rule prohibiting the appearance of
judicial impropriety applies with equal force to the conduct and activities
of those individuals, such as law secretaries, whose close and confidential
relation to the justices is manifest to all. Goldstein v. Bartlett,
92 Misc.2d 262 (1978). However, the final decision to recuse oneself is
within the sole discretion of the court.
Judicial Bias or Prejudice
Although the court may not grant recusal, the bias or prejudice of a
judge may be a ground for appeal. People v. Capuano, 68 Misc.2d 481
(Cty. Ct., Monroe Cty. 1971). Bias or prejudice unconnected with a statutory
"interest" in the controversy can constitute grounds for concluding that a
trial judge abused his discretion by failing to disqualify himself where the
record reveals that his bias affected the result of the trial. See
Matter of Johnson v. Hornblass, supra; Schrager v. New York
University, 642 N.Y.S.2d 243 (1st Dept.1996).
A judge's actual bias is not a ground for disqualification, but there is
recourse for actual bias that unjustly affects the result of the action, and
that is appeal. "Even if actual bias or prejudice is shown, it would not be
grounds for disqualification but would only be reviewable on appeal on a
showing that it had unjustly affected the result." State Division of
Human Rights v. Merchants Mutual Insurance Company, 59 A.D.2d 1054 (4th
Dept. 1977), quoting Matter of Rotwein, supra, 123. Bias might be
grounds for setting aside a decision if the record of the trial indicates
that the decision of the Trial Judge is based upon bias, rather than upon an
impartial consideration of the evidence. See Sherk v. Catena, 235
A.D. 686 (2d Dept. 1932); In the Matter of Rotwein, supra.
Ex Parte Communications
It has been suggested by a recent case involving a justice assigned to
the matrimonial part of the Supreme Court (People v. Garson, 4
Misc. 3d 258 (Sup. Ct., Kings Cty. 2004), that if a judge has improper
ex parte communications with a party or his counsel, apart from being
reversible error, it may serve as a ground for recusal, because such
communications would create the appearance of impropriety, if there was no
actual impropriety or bias. 22 NYCRR 100.3 (c) (6) provides in part that: 6)
... A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside
the presence of the parties or their lawyers concerning a pending or
impending proceeding, except: a) Ex parte communications that are
made for scheduling or administrative purposes and that do not affect a
substantial right of any party are authorized, provided the judge reasonably
believes that no party will gain a procedural or tactical advantage as a
result of the ex parte communication, and the judge, insofar as practical
and appropriate, makes provision for prompt notification of other parties or
their lawyers of the substance of the ex parte communication and
allows an opportunity to respond; b) A judge may obtain the advice of a
disinterested expert on the law applicable to a proceeding before the judge
if the judge gives notice to the parties of the person consulted and a copy
of such advice if the advice is given in writing and the substance of the
advice if it is given orally, and affords the parties reasonable opportunity
to respond; c) A judge may consult with court personnel whose function is to
aid the judge in carrying out the judge's adjudicative responsibilities or
with other judges; d) A judge, with the consent of the parties, may confer
separately with the parties and their lawyers on agreed-upon matters; and e)
A judge may initiate or consider any ex parte communications when
authorized by law to do so.
In Coleman v. Coleman, 61 AD2d 757 (1st Dept.1978), the First
Department reversed a temporary support order because it was made by the
court after it received an improper ex parte communication from the
plaintiff, in violation of Code of Professional Responsibility EC 7-35 and
DR 7-110 (B). See also Meislahn v. McCall, 246 AD2d 957 (3d
Dept.1999) (ex parte communication with hearing officer in
violation of Administrative Procedure Act created appearance of impropriety
and bias); Signet Const. Corp v. Golden, 99 AD2d 431 (1st
Dept.1984); Bernstein v. Taj Group of Hotels, 235 AD2d 370 (1st
Dept.,1997).
Conclusion
Based upon the paucity of reported decisions granting recusal, such
motions are infrequently granted. Although a judge is not supposed to allow
himself to make decisions in a case based on personal animosity toward a
litigant or his counsel, judges are only human. Therefore, it is usually the
safer and wiser course to appeal a decision you feel is based on bias or
prejudice, on "fair trial" grounds, rather than to seek recusal.
Joel Brandes, a member of this newsletter's Board of
Editors, is President of Joel Brandes Consulting, Inc., Jersey City, NJ, and
Ft. Lauderdale, FL. He authored Law and the Family New York, Second Edition,
Revised (nine volumes, Thomson-West) and authors the annual supplements. He
edits "New York Divorce and Family Law," at
www.nysdivorce .com, and "Florida Divorce and Family Law,"at
www.flsdivorce.com. Bari
Brandes Corbin, also on the Board of Editors, maintains her offices
for the practice of law in Laurel Hollow, NY.
©
Copyright, 2005.
Joel R. Brandes and Bari Brandes Corbin. All rights reserved.
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