Opinion 14-186

December 11, 2014

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

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 second-degree relative is the municipality’s deputy dog control officer is disqualified, subject to remittal, from dog ticket cases.

Rules:          Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 13-64; 12-178; 09-138; 02-110; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring town or village justice states that his/her second-degree relative¹ is the deputy dog control officer for the municipality where the judge presides. The deputy’s duties include answering calls and dispatching the dog control officer, entering phone calls to the computer, and printing or emailing accusatory instruments or tickets for the dog control officer to sign and issue. The deputy is authorized to issue a ticket in the absence of the dog control officer, although the deputy has not yet done so during his/her tenure. The judge asks for guidance on his/her ethical obligations when a dog ticket case comes before the judge.

         A judge must always avoid even the appearance of impropriety (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]). A judge must disqualify him/herself in the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14, including when the judge knows that an individual within the fourth degree of relationship is acting as a lawyer in the proceeding or is likely to be a material witness (see 22 NYCRR 100.3[E][1][e]) or that an individual within the sixth degree of relationship is a party to the proceeding or has an interest that may be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][i], [iii]). Even if none of the enumerated circumstances applies, a judge must also disqualify him/herself when the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

          The Committee has previously advised that a judge whose child’s spouse is the local dog control officer is disqualified, subject to remittal, from dog licensing cases and any other cases in which the judge’s child’s spouse is involved, because the child’s spouse is likely to be a material witness in such proceedings (see Opinion 02-110; 22 NYCRR 100.3[E][1][e]).² The relationship here is likewise within the fourth degree, and although the inquiring judge’s relative does not personally sign the accusatory instruments, he/she is personally involved in preparing them. Thus, under the circumstances presented, the Committee concludes that the judge’s impartiality can “reasonably be questioned” in such dog ticket cases due to his/her second-degree relative’s participation (22 NYCRR 100.3[E][1]). The judge is therefore disqualified, subject to remittal, from dog ticket cases (see Opinion 02-110).

         As always, remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see Opinion 13-64). Where permitted, the Committee has advised that remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and is willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see Opinion 09-138; 22 NYCRR 100.3[F]).

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         ¹ A second-degree relative is a sibling, grandparent, or grandchild (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see Opinion 12-178; 22 NYCRR 100.3[E][1][d]-[e]).

         ² Opinion 02-110 relies on a former version of the judicial ethics rules, which required disqualification when the judge knew a relative within the sixth degree was likely to be a material witness. The current standard applies to a relative within the fourth degree (see 22 NYCRR 100.3[E][1][e]). The change does not affect Opinion 02-110, because a judge’s child’s spouse is a relative within the first degree.