Opinion 18-30

March 29, 2018

Digest:        A judge whose first-degree relative is a part-time dispatcher with the sheriff’s department: (1) is not automatically disqualified from presiding over cases involving the sheriff’s department and need not affirmatively ask if his/her relative served as dispatcher; (2) should instruct the relative to advise the judge if he/she is likely to become a witness or otherwise appear in the judge’s court but otherwise discourage any discussion of the relative’s work as a dispatcher; and (3) is disqualified from a case, without the possibility of remittal, if he/she learns the relative was the dispatcher on the case and could be called as a witness.

Rules:          22 NYCRR 100.0(c); 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(e); Opinions 17-150; 16-155; 13-26; 09-242; 09-19; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring town justice’s first-degree relative¹ seeks part-time employment with the local sheriff’s dispatching unit. The sheriff’s department and the NYS Police serve his/her town. The relative’s employment duties would include dispatching law enforcement officers to the scene of reported incidents and running “warrant checks” and “license plate checks.” The relative will have no involvement with road patrol, arrests, or investigations, and no supervisory responsibilities. The judge asks if he/she may preside in the sheriff department’s cases if his/her first-degree relative joins the dispatching unit.

         A judge must always avoid 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 not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify himself/herself in any proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows that a relative by blood or marriage within the fourth degree of relationship is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]). Where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (People v Moreno, 70 NY2d 403 [1987]).

         Here, we conclude the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in all matters involving the sheriff’s department solely because the judge’s first-degree relative is employed in the dispatching unit. The judge’s relative would be one of multiple dispatchers who respond to phone calls by sending others to the scene to investigate but have no investigatory roles themselves. Indeed, we anticipate that a dispatcher who merely relays information about an accident or crime scene to law enforcement officers is unlikely to be involved in any resulting criminal or civil case. This is particularly true where, as here, the relative will have no supervisory responsibilities (cf. Opinion 09-242).

         Moreover, we anticipate that the judge will not normally learn the identity of the particular dispatcher on a case that comes before the court, as this information is seldom relevant. Somewhat analogously, we have said that a judge whose law firm is representing a police sergeant does not have an independent duty to ask whether the sergeant client was on duty every time an arresting officer is called to testify, where this information is not normally relevant or disclosed (see Opinion 09-19). Here, too, we believe the judge has no duty to make such inquiries.

         The judge should advise his/her relative to notify the judge if he/she is likely to become a witness or otherwise appear in the judge’s court (see Opinion 13-26). To minimize the risk of inadvertent ex parte communications, the judge and his/her relative should not otherwise discuss the relative’s work as a dispatcher (cf. Opinion 16-155 [judge must “take reasonable steps to discourage and limit ex parte communications”]; 22 NYCRR 100.3[B][6]).

         If the judge learns that his/her first-degree relative was the dispatcher on a particular case and could be called as a witness, then the judge is disqualified (see 22 NYCRR 100.3[E][1][e]). Since there is too great an appearance of impropriety if a judge presides in a matter in which his/her first-degree relative appears as a witness, remittal is prohibited (see Opinion 17-150). We note that disqualification on this basis is personal to the inquiring judge and does not apply to his/her co-judges, if any (see id.).

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¹ A first-degree relative includes a child, step-child, parent, or step-parent (cf. 22 NYCRR 100.0[C]).