Opinion 08-50

March 13, 2008

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A judge, whose son-in-law serves as undersheriff, is disqualified when his/her son-in-law is involved or appears in a proceeding. When other officers from the same sheriff’s department appear in the judge’s court, the judge is disqualified subject to remittal, unless a matter is before the judge ex parte or if a party is self-represented.

Rules:          22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 07-73; 98-27 (Vol. XVI); 94-52 (Vol. XII); 93-104 (Vol. XI); 90-75 (Vol. VI).

Opinion:

         A judge asks whether he/she may preside in cases involving a county sheriff’s department when the judge’s son-in-law is the undersheriff.

         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 shall not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 93-104 (Vol. XI), the Committee advised that a judge whose adult son is a “patrol officer” with the county sheriff’s department may preside in cases involving the sheriff’s department or any other police agency so long as the judge’s son had no involvement in the case. In the present inquiry, the judge also is disqualified in any proceeding in which the judge’s son-in-law is personally involved (see Opinion 94-52 [Vol. XII]; 90-75 [Vol. VI]).

         In the present inquiry, because the judge’s son-in-law serves in a supervisory capacity, his/her disqualification also is at issue when any officers under the son-in-law’s command appear in the judge’s court.

         In Opinion 94-52 (Vol. XII), the Committee advised that the judge, whose spouse is a police lieutenant, is disqualified, subject to remittal, in matters involving other police officers under the spouse’s command or from the spouse’s precinct. And, in Opinion 98-27 (Vol. XVI), the Committee advised that it would be prudent for a City Court judge, whose spouse is a city Deputy Chief of Police, and whose duties are essentially administrative and do not involve investigations, prosecutions or supervision of officers in arrests and prosecutions to disqualify him/herself in all cases involving the City Police Department, subject to remittal, except when the matter is before the judge ex parte or a party is self-represented. In such circumstances, the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         For the same reason, the judge in the present inquiry also is disqualified when officers subject to his/her son-in-law’s supervision appear in the judge’s court (see 22 NYCRR 100.3[E][1]). Remittal is not available if the matter is before the judge ex parte (e.g., arraignments, applications for search warrants) or if a party is self-represented (see Opinion 07-73; 98-27 [Vol. XVI]). In all other cases involving officers who are subject to the son-in-law’s supervision, 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 nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent an agreement to remit the disqualification in these cases, the judge must recuse him/herself from the proceeding.