Opinion 11-147

December 8, 2011

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 need not disqualify him/herself solely because of the familial relationship when the judge’s second cousin who is a law enforcement officer appears as a witness in the judge’s court but has the discretion to disclose the relationship and to grant or deny any resulting request for recusal, unless the judge’s relationship with his/her relative/law enforcement officer is so close that it would cause the judge’s impartiality to reasonably be questioned.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(E)(1)(d)(I)-(iii); 100.3(E)(1)(e); 100.3(F); Opinions 11-127; 11-124; 09-33; 96-91 (Vol. XV); Joint Opinion 07-114/07-120.

Opinion:

         A judge advises that he/she has two second cousins, both of whom are law enforcement officers who appear in the judge’s court. One is a member of the police force for the same municipality where the judge presides and supervises other police officers on the force. The judge asks whether he/she may preside when either of these officers appears in the judge’s court or when an officer who is supervised by one of these officers appears in the judge’s court. The judge also asks whether he/she may preside in “ex parte matters such as overnight arraignments or requests for warrants in which either of [the judge’s second cousins] is the arresting officer or witness.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, 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]) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). In addition, a judge must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned, including when (1) the judge knows that a party to the proceeding; an officer, director or trustee of a party to the proceeding; or a person who has an interest that could be substantially affected by the proceeding, is related to the judge or the judge’s spouse within the sixth degree (see 22 NYCRR 100.3[E][1][d][I]-[iii]) or (2) the judge knows that a person related to the judge or the judge’s spouse within the fourth degree is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         Although the judge’s second cousins are his/her sixth degree relatives, as law enforcement officers, they are not ordinarily parties, or officers, directors or trustees of parties to the proceedings in the judge’s court (see 22 NYCRR 100.3[E][1][d][i]-[iii]). And, while a law enforcement officer generally is a material witness to proceedings in the judge’s court, the judge’s second cousins are not related to the judge within the fourth degree (see 22 NYCRR 100.3[E][1][e]). Therefore, the judge is not required to disqualify him/herself solely because of the familial relationship when the judge’s second cousins who are law enforcement officers appear in the judge’s court. However, the judge still must consider whether his/her relationship with either of his/her cousins is so close that the judge’s impartiality could reasonably be questioned when either cousin appears in the judge’s court. If the judge so concludes, the judge must disqualify him/herself for that reason (see 22 NYCRR 100.3[E][1]). However, such disqualification is subject to remittal (see 22 NYCRR 100.3[F]) except in ex parte matters such as overnight arraignments and warrant applications or when a party appears without representation (see Joint Opinion 07-114/07-120).

         If after concluding that the relationship with his/her second cousin is not close, so that disqualification is not required, the judge may, but is not required to, disclose the relationship when his/her second cousin appears in the judge’s court in the cousin’s capacity as a law enforcement officer (see Opinion 09-33). The judge may do so even if a party is unrepresented, and has the discretion to grant or deny a request for recusal (see Opinion 11-127 [a judge who is not required to make a disclosure may do so voluntarily, even if a party is unrepresented and may continue to preside even if a party objects]).

         Whether the judge may preside in ex parte matters such as warrant applications or overnight arraignments depends on the nature of the judge’s relationship with each of the judge’s cousins. If the judge concludes that the relationship is not close, so that disqualification is not required, the judge may preside in ex parte matters. However, if the judge concludes that the relationship is close, the judge may not preside in ex parte matters and should seek to have a different judge handle the matter, except in the case of an emergency situation where the judge believes he/she can act impartially (see Opinion 96-91 [Vol. XV]).