Opinion 16-03

January 28, 2016

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 disclose their relationship or disqualify him/herself in cases involving the state police where his/her spouse is a statewide information security officer for the state police and internally advises that agency on technology issues.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 13-64; 11-47; 98-27; 94-52; 92-72.

Opinion:       

         A part-time judge’s spouse is a technical lieutenant in the state police, serving as an information security officer. The spouse’s unit provides technical advice and support to the state police, statewide. Those duties include recovering data, making recommendations concerning technological products and assessing security risks. Although the judge’s spouse may be called on to assist in pulling data for purely internal investigations, he/she is not involved in directing or supervising any investigations or cases that might be heard in the judge’s court; and his/her responsibilities are limited to resolving the internal technological, state police concerns. The judge asks if his/her disclosure of this relationship or disqualification is required in state police cases.

         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]). Thus, a judge must not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). For example, disqualification is required if a person, likely to be a material witness, is related to the judge within the fourth degree of relationship (see 22 NYCRR 100.3[E][1][e]; 100.3[F]).

          Although a judge is disqualified, subject to remittal,¹ where the judge’s spouse has a “high profile” position within the organization (see Opinion 98-27 [disqualification, subject to remittal, where city court judge’s spouse is a city deputy police chief]), the Committee had previously advised that a judge need not disclose the relationship or disqualify him/herself from presiding in criminal matters involving his/her law enforcement spouse’s fellow officers as long as the spouse had no supervisory role and was not personally involved in such matters (see Opinion 11-47; see also Opinions 94-52 [disqualification, subject to remittal, for any matters involving the spouse and spouse’s command where judge’s spouse is a lieutenant and a precinct operations officer]; 92-72 [disqualification is not required in matters involving the sheriff’s department where the spouse is not involved]). The Committee reasoned that, since the spouse had a non-supervisory role and he/she presumably would not be involved in every criminal case in which the department plays a role, there could be no reasonable expectation that the judge’s spouse would likely be a material witness (see Opinion 11-47).

         Similarly, here, there is no reasonable expectation the judge’s spouse would be a material witness in any state police matter before the judge (see Opinion 11-47). While the judge’s spouse is a technical lieutenant and information security officer for the state police in a statewide role, the spouse’s responsibilities and the duties of his/her unit do not involve investigations or cases that might be heard in the judge’s court. Additionally, there is no indication that the spouse’s role is a “high profile” position, which may be categorized as one who is ranked at the “highest echelon” of the organization (see Opinions 11-47; 98-27). Therefore, on these facts, neither disclosure nor disqualification is required.

         Accordingly, this judge need not disclose the relationship or disqualify him/herself in state police cases where his/her spouse is a state police information security officer and technical lieutenant.

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            ¹ Remittal of disqualification is subject to the following conditions: (a) no party is appearing without counsel and (b) the judge is willing and able to make full disclosure of the basis for disqualification on the record (see Opinion 13-64; 22 NYCRR 100.3[F]).