Opinion 08-24

March 13, 2008

Digest:         A judge, whose sibling/law partner serves without compensation as a member of a state commission that advises the Governor about general statewide investigations and procedural reviews of state, county, and local correctional facilities, need not disqualify him/herself when an inmate incarcerated in a state correctional facility appears in the judge’s court or when the judge intends to sentence a defendant to incarceration in a county facility. The judge is disqualified, subject to remittal, if the judge’s sibling/law partner appears in the judge’s court in his/her capacity as a member of the state commission.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.3(F); Opinions 03-96; 90-104 (Vol. VI).

Opinion:

         A part-time judge’s sibling/law partner serves without compensation as a member of a state commission that advises the Governor about general statewide investigations and procedural reviews of state, county, and local correctional facilities. The purpose of the investigations and review is to determine whether the facilities are operated in compliance with applicable federal, state and local mandates and to ensure that proper medical treatment and facilities are available for inmates.

         The judge asks whether he/she must disclose his/her sibling’s position on the state commission should an inmate incarcerated in a state correctional facility appear in the judge’s court or if he/she intends to sentence a defendant to incarceration in a county facility.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 03-96, the Committee advised that a part-time judge may serve on the board of a facility supervised by the Office of Children and Family Services that houses young people convicted of felonies where the judge made no referrals to the facility and had no involvement with the residents. The Committee also has determined that a part-time judge may serve on a local citizen’s advisory committee that would work with the state department of corrections in connection with a new correctional facility to be located in the judge’s town (see Opinion 90-104 [Vol. VI]). The Committee did caution, however, that the judge should not preside if any matter involving the corrections department or arising out of the particular project comes before the judge in his/her judicial capacity.

         In the present inquiry, the judge’s sibling, not the judge him/herself, serves on the state commission. The judge, therefore, is not disqualified from presiding when a state inmate appears in the judge’s court or when the judge will sentence a defendant to a county correctional facility, nor is the judge required to disclose his/her sibling’s involvement with the state commission.

         Should the judge’s sibling/law partner appear in the judge’s court in his/her capacity as a member of the state commission, the judge should disqualify him/herself (see 22 NYCRR 100.3[E][1]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]). If the judge discloses the basis for his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record 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 (see id.). In the absence of an agreement to remit the disqualification, remittal is not available and the judge must recuse him/herself from the proceeding (see id.).