Opinion 02-110

October 24, 2002

NOTE: This opinion cites former Section 100.3(E)(1)(d)(iv), which was deleted in 2006.  Former Section 100.3(E)(1)(d)(iv) required disqualification when a relative within the sixth degree is likely to be a material witness in the proceeding.  In 2006, the "material witness" provision was moved to Section 100.3(E)(1)(e), which applies to fourth-degree relatives.  The change does not affect the outcome of this opinion, which involves a relative within the fourth degree.

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Digest:         A judge must disqualify himself or herself from dog licensing cases where the judge’s daughter-in-law is the dog control officer. Such disqualification is subject to remittal.

Rule:            22 NYCRR 100.3(E)(1)(d)(iv); Opinion 88-57 (Vol. II); Opinions 89-95 (Vol. IV); 90-15 (Vol. VI); 93-104 (Vol. XI); 94-52 (Vol. XII); 97-59 (Vol. XV).

Opinion:

         A judge asks if it is ethically permissible to preside over dog licensing cases if the judge’s daughter-in-law is the dog control officer. The judge’s daughter-in-law may be appointed as dog control officer and would be responsible for issuing tickets for unlicensed dogs.

         Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge knows that a person who is within the sixth degree of relationship to the judge, or the person’s spouse, is likely to be a material witness. 22 NYCRR 100.3(E)(1)(d)(iv). This Committee has previously advised that a judge must disqualify himself or herself in cases (1) involving conservation violations where the judge’s spouse, who is the Regional Forester in charge of state lands, initiates the proceeding or may be a material witness in the proceeding [Opinion 88-57 (Vol. II)]; (2) zoning ordinances where the judge’s son-in-law, who is chair of the zoning board of appeals, participated in the matter at any stage [Opinion 89-95 (Vol. IV)]; (3) where the judge’s son, who is a police officer, is a participant in the matter [Opinion 90-151 (Vol. VI)]; (4) where the judge’s son, who is an officer with the County Sheriff’s Department, was involved or is likely to appear as a witness [Opinion 93-104 (Vol. XI)]; (5) where the judge’s spouse, who is a police lieutenant, or the spouse’s command, was involved in any way [Opinion 94-52 (Vol. XII)]; and (6) any proceeding, including an arraignment, where the judge’s son is the arresting officer [Opinion 97-59 (Vol. XV)].

         Because of the relationships involved in each of the above situations, the Committee concluded that the judge’s impartiality might reasonably be questioned. Similarly, on the same grounds the judge in the present inquiry should disqualify himself or herself in dog-licensing cases, or any other cases in which the judge’s daughter-in-law is involved. Such disqualification, however, is subject to remittal pursuant to section 100.3(F) of the Rules.