Opinion 17-178

December 15, 2017

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).

Dear :

         Your inquiry (17-178) asks for your ethical obligations, if you become town justice, presiding in cases involving the local police department in the same town you would serve. The department employs your spouse as Captain of Staff Services, an administrative position involving record-keeping, scheduling mandated training, and handling the infrastructure of the technology systems and their updates. He/she neither directs nor supervises patrol issues, ticketing, arrests, investigations or prosecutions.

         In particular, you ask if you would be able to preside in criminal matters and traffic violations and issue ex parte protection orders and search warrants if your spouse has no direct involvement in these matters and if the officers who appear before you do not report directly to him/her or fall under his/her command. As long as neither your spouse nor any officer under his/her supervision has any involvement in a case, you may preside in matters involving the town police, and you need not disclose your spouse’s position nor offer to recuse yourself.¹

         Enclosed, for your convenience, are Opinions 17-41, 16-03, and 11-47 which address this matter.

__________________

¹ Based on the facts presented, it appears extremely unlikely that your spouse or the officers under his/her supervision would appear before you in court. However, in the event your spouse appears before you in court, you would be disqualified from presiding. The disqualification would not be subject to remittal. If the officers under your spouse’s supervision appear before you, you would be disqualified, subject to remittal (see e.g. Opinion 17-150). However, remittal is not available in any matter in which a party appears pro se, in ex parte matters, or if you doubt your ability to be fair and impartial (see e.g. Opinions 13-64 and 09-97).

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.