a/n: This is obviously a fictional court order. If you landed here while searching for caselaw on People v. Moreno, you're in a strange place!-but don't leave yet, you might learn something... But start from chapter 1, so you can understand the context of the decision below.

Chapter 21: Recusal

CIVIL COURT, BRONX COUNTY
ORDER OF JUDICIAL DISQUALIFICATION

FORDHAM REALTY

v.

BIANCA ALBRIZZIO

Petitioner moves this Court for an order of judicial disqualification recusing Judge Erik R. Delgado from this holdover proceeding. Petitioner alleges that recusal is mandatory due to my romantic relationship with a member of Respondent's firm, who has appeared on the case. Although the law does not compel me to recuse, for the following reasons the motion is hereby granted.

The objective grounds for judicial disqualification are set forth in New York Judiciary Law § 14. In short, the rule states that a judge must recuse only in four instances: (1) if the he is a party in the case; (2) if he was previously an attorney for either party in the case; (3) if he has an interest in the outcome; or (4) if he is related by blood or marriage to any of the parties. None of these circumstances exist in the present case. While Petitioner alleges that I have an "interest" in the case, in fact I have no "pecuniary or property right" from which I might profit or lose as a consequence of the outcome of these proceedings. See In re Estate of Sherburne, 476 N.Y.S.2d 419, 421 (Qns County Sur. Ct. 1984). These are the only mandatory grounds for judicial disqualification. Outside of these circumstances, it is well-established in the state of New York that the judge himself "is the sole arbiter" of whether he is improperly biased. People v. Moreno, 70 N.Y.2d 403, 406 (1987), citing People v Patrick, 183 N.Y. 52, 54 (1905)(refusing to disqualify a judge whose own son had participated in the case as subordinate counsel). In the instant case, therefore, the law does not compel me to recuse.

There are, however, discretionary grounds for judicial disqualification that are worth considering. The New York Rules of the Chief Administrative Judge §100.3(E)(1) provides for recusal in circumstances "in which the judge's impartiality might reasonably be questioned." In such cases, a judge may decide, at his own discretion, to recuse himself either because of actual partiality or because a challenge to his objectivity would still be reasonable, though mistaken. See Moreno, 70 N.Y.2d 403, 406. As this rule is discretionary, I need not rationalize my recusal in this case. However, since my mind has changed on this issue over the course of litigation, I will explain myself.

Although the Judiciary Law deems certain familial relationships to be completely and always partial, other types of relationships are, in reality, less clear. They vary greatly in degree of intimacy and esteem. Friendships, for example, span a spectrum from breakroom conversation partners to inseparable best friends. It is impossible for statutes to specify which of these relationships warrant recusal—particularly because a person's level of esteem waxes and wanes over time. Most established relationships have a degree of certainty that has not yet developed in those that are brand new. Fiancés are secure in their partiality for each other; a couple who have not yet enjoyed their first date are less sure. Therefore, generally speaking, a challenge to a judge's objectivity in the latter circumstance would not be "reasonable." Nor would it be appropriate for an independent tribunal to draw conclusions. Only the judge himself knows all the facts, the situation, and the true intensity of his feelings.

Although third parties shall have nothing to say in such circumstances, it may actually be the case that a judge is truly partial. Partiality is not a conscious decision; no principled judge sets out deliberately to impose his bias in a case. In fact, partiality is so involuntary that a judge may think he is objective even as he tips the balance. Even the most honest judge is still merely a man. Therein lies the paradox of discretion under People v. Moreno: although the judge is the only appropriate arbiter of his own feelings, he is probably the last to realize that his bias has made him unfair. Therefore, a judge considering recusal under §100.3(E)(1) of the Rules of the Chief Administrative Judge should wisely disqualify himself based on his acknowledged affection rather than on his unconscious partiality.

In applying the facts of this case, therefore, I will not discuss what mistakes I may have made in prior rulings, nor will I conjecture on my prospective objectivity. For if I am, in fact, partial, then my partiality will also cloud my judgment on this matter. Instead, I shall assess my sentiments, and if my affections are substantial, then I must conclude that partiality is present.

In this instance, the facts overwhelmingly necessitate my recusal. For the past several years, Miss Christine Dale, Esq., has been employed with Respondent's counsel, The Bronx Defense Project, and has appeared in my court many times. I therefore have had ample opportunity to observe and admire her skills and virtues. Such regard, by itself, does not usually merit recusal; judges typically like some attorneys' styles more than others. But over the past few months, Miss Dale and I have spent time together outside the courtroom, have expressed our mutual attraction, and have withstood ordeals in which our shared victories advanced our attachment. I now consider our partnership to be a greater honor than any position I have held in my lifetime. I only regret that I am merely a civil court judge, and not "a king, a genie, an emperor, an archangel, a god, so that [I] could cast a greater slave at her feet." Victor Hugo, The Hunchback of Notre Dame, Book VIII Ch. IV ¶ 62 (1831). As my affections in this case are very substantial, I therefore recuse.

I shall remit my disqualification under §100.3(F) of the Rules of the Chief Administrative Judge if the parties are in agreement; such stipulation to be filed no later than 20 days from the Notice of Entry of this order.

SO ORDERED,

/s/__

Erik R. Delgado, CCJ

THE END