Opinion 16-160

December 8, 2016

Please Note:  This opinion has been modified by Opinion 19-89, which now forbids remittal here as of January 1, 2020. Please see Opinion 19-89 for more information, including the rationale and limited impact on other opinions.  

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 part-time judge whose first-degree relative is the police chief for the municipality where the judge presides is disqualified in any matter involving the municipal police department or its officers, subject to remittal where appropriate.

Rules:          22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 16-67; 15-224; 15-06; 13-65; 11-47; 09-242; 09-223; 08-50; 94-71; 94-33. 

Opinion:

         The inquiring part-time judge’s first-degree relative¹ will soon commence work as police chief in the municipality where the judge presides. The police chief position is “highly visible and important,” entailing numerous supervisory functions over a relatively small department, which also coordinates court security requirements with municipal judges. The judge currently presides over civil and criminal cases and adjudicates parking violation matters. The judge asks if he/she may continue to (1) preside at arraignments, “if they do not object, or grant remittal”; (2) preside through the conclusion of criminal cases commenced prior to, but continuing after, appointment of his/her relative; (3) “adjudicate mail-in traffic tickets” and (4) preside in “traffic cases when a pro-se defendant appears.” The judge also asks the Committee to confirm that his/her relative’s appointment does not affect his/her ability to preside in criminal cases that involve the county sheriff or state police, rather than the local police, and civil cases such as small claims or summary proceedings which do not involve the police.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 [A]). A judge also must 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” (22 NYCRR 100.3[E][1]), including when the judge knows a fourth-degree relative by blood or marriage is acting as a lawyer in the proceeding or is likely to be a material witness in it (see 22 NYCRR 100.3[E][1][e]).

Interpreting these provisions, the Committee has also required disqualification where a judge’s first-degree relative supervises the attorney or witness appearing before him/her (see Opinions 08-50; 09-242; 11-47) or otherwise holds a position “at the very highest levels of” a department or agency appearing before the judge (Opinion 16-67).

         Accordingly, once the judge’s first-degree relative becomes the local police chief, the judge may not preside in any case involving the police department or its officers, including at arraignments (see e.g. Opinion 09-223) and in cases commenced before appointment of the judge’s relative. Moreover, the judge may not adjudicate traffic cases with unrepresented defendants or mail-in traffic tickets, where local police issued the tickets (see Opinion 13-65 [judge should refrain from handling any cases involving pleas defendants enter by mail for tickets issued by judge’s spouse or by any officer supervised by the judge’s spouse]; cf. Opinions 94-71; 94-33).

         As always, remittal is unavailable if any party appears without counsel (see Opinion 09-242), in ex parte applications (see id.), or if the judge doubts his/her ability to be fair and impartial.

However, assuming the defendant is represented by counsel and the judge can be fair and impartial, disqualification is subject to remittal as follows (see Opinion 15-224 n2 [citations omitted]):

Remittal is a three-step process: (1) the judge must fully disclose the basis for disqualification on the record; (2) without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree the judge may preside; and (3) the judge must independently conclude he/she can be impartial and be willing to preside in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement in the record of the proceeding.

The Committee observes that the judge’s alternative proposal, to make disclosure at arraignments and then preside “if they [parties and counsel] do not object,” is insufficient to effectuate remittal of disqualification under section 100.3(F) and prior opinions. Moreover, it is unlikely that remittal will be practicable for mailed-in guilty pleas, as there is no clear mechanism for disclosure to all parties and defendants are unlikely to be represented by counsel.

         The judge may, of course, continue to preside in civil and criminal matters not involving the municipal police department.

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¹ Relatives within the first degree include a spouse, child, or parent (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see e.g. Opinion 15-06 n1).