Can a Judge Be Recused for Having A Daughter Attend the School of the Opposing Party?

Full Question:

In a lawsuit against university, if the judge's daughter is an alumna of the university, should I ask the judge to recuse herself?
09/14/2010   |   Category: Courts ยป Pro Se   |   State: New York   |   #23163

Answer:

In some cases, where there is a conflict of interest, the judge may be required to recuse himself from the case. Typically, to show bias on the part of a judge, a relationship between the judge and a party to the case, communications with the judge outside the courtroom, or a financial interest involving the judge is shown. A judge must not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.

The answer will depend on all the facts involved. The fact of the daughter being an alumni by itself will not probably be enough to disqualify the judge. It may be necessary to show bias or to prove a financial interest, such as a donation to the school. Keep in mind that the same judge will be deciding the motion to recuse.

Please see the following from the New York Code of Judicial Conduct:

CANON 3 [§100.3]
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE
IMPARTIALLY AND DILIGENTLY.
(A) Judicial duties in general. The judicial duties of a judge take precedence over all
the judge's other activities. The judge's judicial duties include all the duties of the
judge's office prescribed by law. In the performance of these duties, the following
standards apply.
(B) Adjudicative responsibilities.
(l) A judge shall be faithful to the law and maintain professional competence
in it. A judge shall not be swayed by partisan interests, public clamor or fear of
criticism.
(2) A judge shall require order and decorum in proceedings before the judge.
(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.
(4) A judge shall perform judicial duties without bias or prejudice against or
in favor of any person. A judge in the performance of judicial duties shall not, by words
or conduct, manifest bias or prejudice, including but not limited to bias or prejudice
based upon age, race, creed, color, sex, sexual orientation, religion, national origin,
disability, marital status or socioeconomic status, and shall require staff, court officials
and others subject to the judge's direction and control to refrain from such words or
conduct.
(5) A judge shall require lawyers in proceedings before the judge to refrain
from manifesting, by words or conduct, bias or prejudice based upon age, race, creed,
color, sex, sexual orientation, religion, national origin, disability, marital status or
socioeconomic status, against parties, witnesses, counsel or others. This paragraph does
not preclude legitimate advocacy when age, race, creed, color, sex, sexual orientation,
religion, national origin, disability, marital status or socioeconomic status, or other
similar factors are issues in the proceeding.
(6) A judge shall accord to every person who has a legal interest in a
proceeding, or that person's lawyer, the right to be heard according to law. 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.
(e) A judge may initiate or consider any ex parte communications
when authorized by law to do so.
(7) A judge shall dispose of all judicial matters promptly, efficiently and
fairly.
(8) A judge shall not make any public comment about a pending or
impending proceeding in any court within the United States or its territories. The judge
shall require similar abstention on the part of court personnel subject to the judge's
direction and control. This paragraph does not prohibit judges from making public
statements in the course of their official duties or from explaining for public information
the procedures of the court. This paragraph does not apply to proceedings in which the
judge is a litigant in a personal capacity.
(9) A judge shall not commend or criticize jurors for their verdict other than
in a court order or opinion in a proceeding, but may express appreciation to jurors for
their service to the judicial system and the community.
(10) A judge shall not disclose or use, for any purpose unrelated to judicial
duties, nonpublic information acquired in a judicial capacity.
(C) Administrative responsibilities.
(1) A judge shall diligently discharge the judge's administrative responsibilities
without bias or prejudice and maintain professional competence in judicial
administration, and should cooperate with other judges and court officials in the
administration of court business.
(2) A judge shall require staff, court officials and others subject to the judge's
direction and control to observe the standards of fidelity and diligence that apply to the
judge and to refrain from manifesting bias or prejudice in the performance of their
official duties.
(3) A judge shall not make unnecessary appointments. A judge shall
exercise the power of appointment impartially and on the basis of merit. A judge shall
avoid nepotism and favoritism. A judge shall not approve compensation of appointees
beyond the fair value of services rendered. A judge shall not appoint or vote for the
appointment of any person as a member of the judge's staff or that of the court of which
the judge is a member, or as an appointee in a judicial proceeding, who is a relative
within the sixth degree of relationship of either the judge or the judge's spouse or the
spouse of such a person. A judge shall refrain from recommending a relative within the
sixth degree of relationship of either the judge or the judge's spouse or the spouse of
such person for appointment or employment to another judge serving in the same
court. A judge also shall comply with the requirements of Part 8 of the Rules of the
Chief Judge (22 NYCRR Part 8) relating to the appointment of relatives of judges.
Nothing in this paragraph shall prohibit appointment of the spouse of the town or
village justice, or other member of such justice's household, as clerk of the town or
village court in which such justice sits, provided that the justice obtains the prior
approval of the Chief Administrator of the Courts, which may be given upon a showing
of good cause.
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(D) Disciplinary responsibilities.
(1) A judge who receives information indicating a substantial likelihood that
another judge has committed a substantial violation of this Part shall take appropriate
action.
(2) A judge who receives information indicating a substantial likelihood that
a lawyer has committed a substantial violation of the Code of Professional
Responsibility shall take appropriate action.
(3) Acts of a judge in the discharge of disciplinary responsibilities are part of
a judge's judicial duties.
(E) Disqualification.

(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:
(a) (i) the judge has a personal bias or prejudice concerning a party or
(ii) the judge has personal knowledge of disputed evidentiary facts concerning the
proceeding;
(b) the judge knows that (i) the judge served as a lawyer in the matter
in controversy, or (ii) a lawyer with whom the judge previously practiced law served
during such association as a lawyer concerning the matter, or (iii) the judge has been a
material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the
judge's spouse or minor child residing in the judge's household has an economic
interest in the subject matter in controversy or in a party to the proceeding or has any
other interest that could be substantially affected by the proceeding;
(d) the judge knows that the judge or the judge's spouse, or a person
known by the judge to be within the sixth degree of relationship to either of them, or the
spouse of such a person:
(i) is a party to the proceeding;
(ii) is an officer, director or trustee of a party;
(iii) has an interest that could be substantially affected by
the proceeding;
(iv) is likely to be a material witness in the proceeding;
(e) the judge knows that the judge or the judge's spouse, or a person
known by the judge to be within the fourth degree of relationship to either of them, or
the spouse of such a person, is acting as a lawyer in the proceeding.
(f) Notwithstanding the provisions of subparagraphs (c) and (d)
above, if a judge would be disqualified because of the appearance or discovery, after the
matter was assigned to the judge, that the judge individually or as a fiduciary, the
judge's spouse, or a minor child residing in his or her household has an economic
interest in a party to the proceeding, disqualification is not required if the judge, spouse
or minor child, as the case may be, divests himself or herself of the interest that
provides the grounds for the disqualification.
(2) A judge shall keep informed about the judge's personal and fiduciary
economic interests, and make a reasonable effort to keep informed about the personal
economic interests of the judge's spouse and minor children residing in the judge's
household.
(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.

For further discussion, please see:

http://www.nysba.org/Content/NavigationMenu16/CodeofJudicialConduct/CJC.pdf
http://jec.unm.edu/resources/judicial_handbook/ethics/ethics06.htm
http://www.projectposner.org/case/2002/286F3d406