Opinion 03-87

September 4, 2003

Digest:            (1) A judge whose spouse is an attorney with the New York State Police is not disqualified from hearing all cases involving the State Police, but should not preside in any case in which the spouse has been involved; (2) A judge who had been the District Attorney should not preside in any criminal matter that was pending in the District Attorney’s Office as of the date he/she assumed judicial office.

Rule:               22 NYCRR 100.3(E)(1). Opinion 97-08 (Vol. XVI); 96-139 (Vol. XIV); 93-116 (Vol. XI); 93-08 (Vol. XV); 90-91 (Vol. XVI).

Opinion:

            The inquirer is a candidate for the office of County Court Judge and Surrogate of a county in which he/she is presently District Attorney. The inquirer’s spouse is an assistant counsel with the New York State Police, whose duties do not include involvement in investigations and arrests, although he/she does answer questions of law from members of the State Police that arise in their cases. Over the past three years approximately five legal questions per year involve matters in the inquirer’s county.

            The candidate seeks the Committee’s opinion as to whether, should he/she be elected, (1) recusal would be required in all cases involving the State Police; and (2) he/she would be barred from hearing any criminal cases in County Court for a period of two years.

            As to the first question, the Committee is of the opinion that the spouse’s association with a law enforcement agency does not, in and of itself, mandate recusal, nor is disclosure of the relationship required. That fact alone, in our view, is not a circumstance requiring the conclusion in that such instances the judge’s impartiality might reasonably be questioned thereby disqualifying the judge from presiding. 22 NYCRR 100.3(E)(1); See, e.g., Opinion 93-116 (Vol. XI); 93-08 (Vol. XI); 90-91 (Vol. VI). Of course, if the spouse had an involvement in the case before the judge e.g. rendering advice to the police officer involved, the judge should exercise recusal. But, in the absence of such involvement neither recusal nor disclosure is required.

            As to the second question, there is no requirement that the District Attorney who becomes a judge handling criminal cases in the county should refrain from hearing all criminal cases being prosecuted by the same prosecutor’s office for a particular period of time. The position of the District Attorney is not, in our view, analogous to that of a partner in a law firm that is now appearing before the judge who had also been a partner in that firm.

            Nevertheless, a judge who had been the District Attorney should not preside in any criminal case that was pending as a prosecution or as a matter under investigation by the District Attorney’s Office as of the date the candidate assumed judicial office. Regardless of whether the inquirer had actual knowledge of or involvement in a particular matter, the fact that he/she was the official in charge and under whose authority proceedings were conducted distinguishes this situation from one where the spouse was an assistant district attorney (see Opinions 96-139 [Vol. VI]; 93-118 [Vol. XI] and suffices to warrant a recusal in all such matters. See, Opinion 97-08 (Vol. XV) [judge who had been chief of county branch of corporation counsel’s office with general supervisory power over all tort cases brought against municipality in that county should not preside over such cases that were pendingduring the judge’s employment.]. But as to matters arising after termination of his/her status as the District Attorney, there is no ethical requirement of recusal.