Opinion 09-242

January 28, 2010

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 first degree relative is in charge of the road patrol division of the county sheriff’s department, for the same county where the judge presides, must disqualify him/herself in all sheriff’s department cases in which the relative is involved or appears and in any proceeding where officers who are subject to the relative’s supervision appear. While this disqualification is subject to remittal, except where a party appears without counsel or if a matter is before the judge ex parte, the judge should seriously consider recusal where his/her first degree relative holds such a high ranking supervisory law enforcement position.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinion 08-50; 08-22; 98-27 (Vol. XVI); 94-52 (Vol. XII).

Opinion:

          A town justice who recently took office advises that his/her first degree relative is in charge of the road patrol division of the county sheriff’s department in the county where the judge presides. The inquirer asks whether he/she must disqualify him/herself from all cases involving the sheriff’s department or if he/she must disclose his/her relative’s employment in all sheriff department cases.

         According to the job description the judge provided, the road patrol division is responsible for general police services throughout the county. The head of the road patrol division is responsible for supervising “all patrol and uniformed operations of the agency; develops policy for the Division; assigns duties and details and reviews performance; investigates complaints of misconduct and administers discipline; handles grievances; inspects personnel and equipment; prepares State and local reports; directs patrol activities; and represents the Sheriff as directed.”

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and 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, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge whose son-in-law serves as undersheriff in the same county where the judge presides must disqualify him/herself in any case where his/her son-in-law appears and also when officers who are subject to the judge’s son-in-law’s supervision appear in the judge’s court (see Opinion 08-50). Similarly, in Opinion 94-52 (Vol. XII) the Committee advised that a judge whose spouse is a police lieutenant is disqualified 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 a 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.

         Because the inquiring judge’s first degree relative holds a position with the local sheriff’s office that requires him/her to, among other responsibilities, supervise all patrol and uniformed operations of the department and direct patrol activities, the judge must disqualify him/herself in any case in which his/her relative is involved or appears. In addition, the judge must disqualify him/herself in any proceeding where officers who are subject to his/her relative’s supervision appear in the judge’s court. Based on the job description the judge provided, it appears that his/her relative is involved either directly or in a supervisory capacity in most or all of the sheriff department’s cases heard in the judge’s court.

         In either case, the judge’s disqualification is subject to remittal except as indicated below (see 22 NYCRR 100.3[F]). Therefore, if the judge is willing to preside and believes he/she can be impartial, and all parties are represented by counsel, the judge may disclose on the record that his/her first degree relative is in charge of the road patrol division and must fully disclose the nature of his/her first degree relative’s responsibilities in that capacity to the parties who have appeared and not defaulted and to their lawyers (see 22 NYCRR 100.3[F]). Only with full disclosure can the parties and their counsel intelligently determine whether to ask the judge to exercise recusal. If, without the judge's participation, the parties and their lawyers thereafter agree that the judge should not be disqualified, and they incorporate the agreement in the record of the proceeding, the judge may preside (see id.). Nevertheless, it is the Committee’s view that under these circumstances, the judge should seriously consider recusal where his/her first degree relative holds such a high ranking supervisory position in a law enforcement agency. In any event, absent an agreement to remit the judge’s disqualification, he/she must exercise recusal.

         However, remittal is not available where a party appears without a lawyer or if a matter is before the judge ex parte (e.g., arraignments, applications for search warrants) (see Opinion 08-50). And, if the need for disqualification becomes so frequent that it interferes with the judge’s ability to properly perform his/her judicial duties, he/she may not continue to hold judicial office in these circumstances (see Opinion 08-22).