Opinion 11-47

April 28, 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:         The choice of surname(s) by a judge and his/her spouse is primarily a personal or legal matter which is not governed by the Rules Governing Judicial Conduct even if the judge’s spouse is a law enforcement officer. Additionally, so long as a judge does not preside over any matters involving his/her law enforcement officer/spouse or officers under the spouse’s supervision, the judge need not disclose the relationship or disqualify him/herself in criminal matters.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 10-184; 09-242; 08-50; 99-173 (Vol. XVIII); 98-152 (Vol. XVII); 98-27 (Vol. XVI); 98-22 (Vol. XVI); 97-59 (Vol. XV); 94-52 (Vol. XII); 93-104 (Vol. XI); 92-72 (Vol. IX); 92-71 (Vol. IX); 90-151 (Vol. VI).

Opinion:

         A part-time judge, who primarily handles vehicle and traffic matters mailed to the court for disposition and arraignments when the co-judge is unavailable, is married to a law enforcement officer whose assignment includes the municipality where the judge presides. The judge states that he/she does not participate in any of his/her spouse’s cases and does not “handle open court.” Under these circumstances, the judge asks whether “any ethical issue” will arise if he/she and the officer/spouse use the same surname, and further asks if he/she must disclose in each matter that his/her spouse is a law enforcement officer.

         A judge must avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must 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 disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). For example, disqualification is required if a person who is likely to be a material witness in the matter is related to the judge within the fourth degree of relationship (see 22 NYCRR 100.3[E][1][e]; 100.3[F]).

         In the Committee’s view, the choice of a judge and his/her spouse with respect to their surname(s) is primarily a matter of personal preference which may be subject to legal rules but is not governed by the Rules Governing Judicial Conduct (cf. Opinion 98-22 [Vol. XVI] [non-judge spouse who “has the same last name as the judge” remains free to engage in his/her own bona fide independent political activity]).

         Regardless of whether a judge and a law enforcement officer share a surname, if the judge knows that he/she is related to a law enforcement officer within the fourth degree of affinity or consanguinity, the judge is disqualified from proceedings in which the law enforcement officer is personally involved (see e.g. Opinions 10-184 [judge’s niece’s spouse is a deputy sheriff in the same department where the judge was formerly a part-time employee]; 98-152 [Vol. XVII] [judge’s grandnephew is a police officer in the same village]; 97-59 [Vol. XV] [judge’s son is the arresting police officer]; 90-151 [Vol. VI] [judge’s son is a police officer with the local police department]). Thus, the inquiring judge should continue his/her current practice of not presiding over or participating in any of his/her spouse’s cases.

         With respect to criminal matters in which the judge’s spouse is not involved, neither disclosure nor disqualification is required under the facts presented. The Committee has previously advised that non-supervisory law enforcement personnel typically “would in no event have any financial or other interest in the prosecution of criminal cases” that would require disclosure or disqualification when other members of the same agency appear before the judge as long as the judge’s relative is not personally involved in the matter (see Opinion 93-104 [Vol. XI]). Moreover, a non-supervisory position “presumably does not entail responsibilities that would involve the judge’s [relative] in every criminal case in which the department plays a role” and “[t]here would be no reasonable expectation that the judge’s [relative] would be a material witness in cases in which [he/she] had not participated” (id.). Thus, unless a judge’s relative has a “high profile” within the department, the judge may ordinarily preside over matters involving other members of the same department without disclosure or disqualification (see Opinions 93-104 [Vol. XI] [acting county court judge’s son is an officer of the county sheriff’s department]; 92-72 [Vol. IX] [judge’s spouse and brother-in-law are deputy sheriffs in the same county where the judge’s court is located]; cf. Opinion 99-173 [Vol. XVIII] [judge is in a personal relationship with a police sergeant in the same municipality where the judge’s court is located]). Similarly, the inquiring judge need not disclose that his/her spouse is a law enforcement officer when other members of the spouse’s department appear, as long as his/her spouse is not personally involved in the case (see Opinion 93-104 [Vol. XI]; cf. 99-173 [Vol. XVIII].

         Finally, although the inquiring judge identifies his/her spouse simply as a law enforcement officer and does not state that the spouse has any supervisory responsibilities, the Committee notes that the judge will have broader disqualification obligations if the judge’s spouse has, or later attains, a “high profile” or supervisory position in a law enforcement agency (see Opinions 09-242 [where judge’s relative is in charge of the road patrol division of the sheriff’s department, judge is disqualified from matters in which officers subject to the judge’s relative’s supervision appear]; 08-50 [where judge’s relative is the undersheriff, judge is disqualified from matters in which officers under the judge’s relative’s command appear]; 98-27 [Vol. XVI] [where judge’s relative is a city deputy chief of police, “at the highest echelon of the Department, issuing press releases and conducting press conferences,” judge must disclose the relationship in each criminal proceeding and is disqualified from all city police cases]; 94-52 [Vol. XII] [where judge’s relative is a police lieutenant who serves as a precinct operations officer, judge is disqualified from matters in which the officers under the relative’s command or officers of the same precinct participate or appear before the judge]). Thus, if the judge’s spouse has or attains a supervisory role, the judge must disqualify him/herself from matters involving any law enforcement personnel under his/her spouse’s supervision. Such disqualification is subject to remittal, except where a party appears without counsel or if a matter is before the judge ex parte, but the judge should seriously consider recusal if his/her spouse holds a high-ranking supervisory law enforcement position (see 22 NYCRR 100.3[F]; Opinion 09-242).