Opinion 16-67

May 5, 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 whose first-degree relative heads the local probation department is disqualified from matters where the department’s employees appear, subject to remittal.

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(E)(1) (c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.3(F); Opinions 15-06; 13-108; 13-64; 12-163; 10-112; 10-05; 09-138; 07-216; 06-111; 98-27.

Opinion:

         The inquiring judge’s first-degree relative¹ heads a local probation department.² Its officers appear before the judge to “report on [a litigant’s] background, current status and make recommendations for disposition.” The Director “is rarely involved in any individual cases except when they are high profile,” and would not personally participate in any cases assigned to the judge’s part. Also, the Director’s role is “primarily administrative,” and he/she has delegated direct supervisory functions to his/her deputy and “several other layers of supervisors.” The judge asks whether he/she must disclose the relationship or disqualify him/herself when probation officers appear before him/her.

         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 any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), or in any of the specifically enumerated circumstances set forth by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). For example, a judge may not preside when the judge knows a sixth-degree relative “has an interest that could be substantially affected” (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]) or a fourth-degree relative is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         The Committee has previously considered ethical obligations of judges whose close relatives hold high-level or supervisory roles in governmental or not-for-profit agencies that appear before them (see e.g. Opinions 13-108 [spouse]; 12-163 [spouse]; 10-112 [spouse]; 98-27 [spouse]).³ The results vary depending on the relative’s role, visibility, and overall level in the agency.

         Where a judge’s spouse is merely “a supervisor” in a probation department, the spouse is “deemed ‘personally involved’ in all matters he/she directly supervises” and, therefore, the judge must disqualify him/herself, subject to remittal, in such cases (Opinion 13-108). In those circumstances, the judge may preside in matters involving other probation officers from the same department, who are not supervised by the judge’s spouse, provided the judge believes he/she can remain fair and impartial (id.).

         However, where a judge’s close relative is at the very highest levels of an organization, the obligations are presumptively greater. For example, in Opinion 98-27, the spouse’s employment duties as a deputy chief of a city police force were primarily administrative and did “not involve investigations, prosecutions or supervision of officers in arrests and prosecutions,” but involved “issuing press releases and conducting press conferences” (id.). In the Committee’s view, because the spouse was “at the highest echelon of the [d]epartment” and in a position of “high public visibility,” the judge’s impartiality could reasonably be questioned when a police officer appeared before the judge (id.). The judge was therefore disqualified, subject to remittal, in criminal matters where his/her spouse had no personal involvement in the case (id.).⁴ Similarly, in Opinion 10-112, the Committee stated that a judge presiding in a problem solving court, whose spouse held an administrative position overseeing the operations of a not-for-profit agency that provided services to defendants who appeared in the judge’s court, was disqualified from all matters involving the agency. Because the judge may “preside when a defendant is returned to court for non-compliance with his/her treatment program,” to the extent that “a representative from the agency that employs the judge’s spouse could be a material witness or have some other involvement in the case,” the Committee concluded the judge’s impartiality might reasonably be questioned in such cases (id.).⁵

         Here, the inquiring judge’s first-degree relative is the Director of a local probation department whose employees appear in the judge’s court. The relative is at the very highest echelon in the agency and is, in essence, the agency’s public face. That the Director does not directly supervise the probation officers who appear before the judge does not, in this instance, preclude the judge’s impartiality from being reasonably questioned when they appear (see 22 NYCRR 100.3[E][1]; cf. Opinions 07-216 [relative’s position as the District Attorney warrants the inference of direct or indirect involvement in all matters]; 10-05 [judge whose spouse is the County Attorney is disqualified, subject to remittal, when any assistant county attorney appears before him/her]).

         The Committee therefore concludes this judge is disqualified from presiding in matters in which probation department employees appear before him/her, subject to remittal.

         As always, remittal is unavailable if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure. Where permitted, remittal is a three-step process: (1) the judge must fully disclose the basis for disqualification on the record; (2) the parties who have appeared and not defaulted, and their counsel, must all agree the judge should not be disqualified; and (3) the judge must independently conclude he/she will be impartial and is willing to participate (see 22 NYCRR 100.3[F]; Opinions 13-64; 09-138). Once these steps are satisfied, the judge may continue to preside after he/she incorporates the agreement in the record of the proceeding (see id.).

         Finally, it appears from the inquiry that an institutional prosecutor and institutional defender typically appear in matters involving the probation department. Although the Committee has not previously addressed ways to expedite the remittal process when there are “repeat player” attorneys on both sides, any system the judge adopts must, at a minimum, involve full disclosure of the basis for disqualification and, especially for the institutional defender, consultation with the client (see 22 NYCRR 100.3[F]). Remittal is only permitted on consent of all parties and their attorneys, and both the disclosure and the remittal must be incorporated into the record (see id.).

______________________

         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).

         ² The formal title for head of a county probation department varies throughout the state, e.g. “Administrator,” “Commissioner,” or “Director.” The Committee here uses the term “Director,” as it is the most common title.

         ³ In analyzing disqualification requirements, the Committee has recognized the second degree of consanguinity (sibling, grandchild, or grandparent) as a relatively “intimate and significant family connection” (Opinion 06-111).

         ⁴ The Committee used different language to describe this result, but it is the functional equivalent.

         ⁵ The Committee believes Opinion 12-163 is inapplicable on the facts presented. In Opinion 12-163, a support magistrate’s spouse was the deputy commissioner of administration for a state agency, with responsibilities for human resources and budgeting. Because the spouse was a deputy commissioner, rather than the Commissioner, the spouse’s superior within the agency could meaningfully insulate the spouse from all matters that would come before the support magistrate. Moreover, the spouse’s administrative responsibilities, though high-level, were largely internal with little, if any, public visibility. Under those circumstances, where the Commissioner provided written assurance that the spouse would be completely insulated from all Family Court matters, neither disclosure nor disqualification was required in matters involving the agency (see Opinion 12-163).