Opinion 19-162

January 30, 2019

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.”  (Here, the change affects item “Third” in our overview of the remittal process.)

Digest:         A judge whose spouse is a forest ranger with law enforcement responsibilities:

(1) is disqualified from cases involving tickets issued by his/her spouse or based on work done by the judge’s spouse;

(2) may attend his/her spouse’s professional awards ceremony.

Rules:          CPL 1.20(v); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(I)-(ii); 100.3(F); 100.4(D)(5); 100.4(D)(5)(b); Opinions 19-89; 19-59; 19-51;17-150; 13-65; 11-67; 09-97; 08-50; 02-81.

Opinion:

         A new part-time judge asks two questions about his/her spouse’s employment as a forest ranger with law enforcement responsibilities. We will discuss each separately.

         We first note a judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).

1. Tickets Involving the Judge’s Spouse

         As a forest ranger, the judge’s spouse regularly issues tickets for violations to be heard in the judge’s court.¹ The spouse also works with other law enforcement officers who may issue tickets based on his/her work. For example, the judge’s spouse may “be running radar in a particular area and an officer makes a stop down the road” and the officer then issues a ticket to a defendant motorist for an alleged Vehicle and Traffic Law violation. The judge asks if he/she may preside in these matters.

          A judge must disqualify him/herself when his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when a fourth-degree relative by blood or marriage is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]). For a relative within the second degree, remittal is not available unless strict conditions are met (see 22 NYCRR 100.3[E][1][e][I]-[ii]; 100.3[F]).

         Applying these rules, we said a judge “is disqualified from Vehicle and Traffic Law matters in which the judge’s first-degree relative is the issuing police officer of a traffic infraction, and remittal is unavailable” (Opinion 19-51). Also, where a judge’s spouse is a sergeant with the sheriff’s road patrol division, we said the judge is disqualified from “all cases or proceedings in which [the] spouse is involved or appears, and in any cases or proceedings where officers who are subject to [the] spouse’s supervision appear” (Opinion 13-65). Thus, the judge must “refrain from handling any cases involving pleas defendants enter by mail for tickets [the judge’s] spouse, or any officer [his/her] spouse supervises, issued” (id.).

         As described in Opinion 19-51 (citations omitted):

Inasmuch as the officer who issued the ticket is likely to be a witness in a proceeding involving a traffic infraction, the inquiring judge must recuse when the judge knows that the relative has issued the ticket. The judge need not, however, separately scrutinize all pleadings to determine whether his/her relative is the issuing officer but must disqualify if the relative’s role is actually known or readily available, such as when the officer’s name appears on the ticket.

We note the judge may, if he/she wishes, consider adopting procedures to minimize the disruption of learning partway through a case that his/her spouse is personally involved. For example, the court clerk could review new case filings to see if the judge’s spouse’s name is mentioned, or the judge’s spouse could voluntarily advise the court clerk if he/she is likely to be personally involved in a matter, even if he/she was not the issuing officer. The judge must not, of course, discuss cases with his/her spouse (see 22 NYCRR 100.3[B][6] [prohibiting ex parte communications unless an exception applies]).

         Although we expect remittal of disqualification will be extremely rare, if not impossible, when the judge’s spouse personally issued a defendant’s ticket or participated in a defendant’s arrest, we nonetheless set forth the remittal process for completeness. When the judge’s spouse is personally involved in a matter, the judge’s disqualification is not subject to remittal unless all the following conditions are strictly met. First, the judge’s spouse must not have personally appeared in the court proceeding and must be unlikely to do so (see 22 NYCRR 100.3[E][1][e][I]). Indeed, the spouse must remain “permanently absent” from the courtroom in order to offer remittal (see 22 NYCRR 100.3[E][1][e][ii]). Second, the proceeding cannot be ex parte, such as a search warrant application (see Opinions 17-150; 09-97; 08-50). Third, all parties must be represented by counsel (see id.). Fourth, the judge must fully disclose the basis for his/her disqualification on the record, including the nature of the relationship (see 22 NYCRR 100.3[F]). Fifth, the parties who have appeared and not defaulted and their attorneys, without the judge’s participation, all must agree the judge may preside (see id.). And, finally, the judge must independently conclude he/she can be impartial and is willing to preside (see id.). At that point, and not before, the judge may accept remittal of disqualification; to do so, he/she must incorporate the parties’ and their attorneys’ agreement into the record (see id.; Opinions 19-89; 19-59).

2. Awards Ceremony Involving the Judge’s Spouse

           The judge’s spouse has previously received professional awards from the state or the forest ranger division for his/her work. The judge thus asks if he/she may attend similar awards ceremonies or other functions honoring his/her spouse’s professional accomplishments.

         A judge must not accept, and must urge family members residing in his/her household not to accept, any “gift, bequest, favor or loan” unless an exception applies (22 NYCRR 100.4[D][5]). One exception is for an award “incident to the business, profession or other separate activity of a spouse,” provided the award “could not reasonably be perceived as intended to influence the judge in the performance of judicial duties” (22 NYCRR 100.4[D][5][b]).

         We have said a judge may attend a Police Benevolent Association’s fund-raising dinner (see Opinion 02-81) or its annual awards dinner and tribute to fallen officers (see Opinion 11-67). Neither situation could be reasonably perceived as intending to influence the judge in the performance of the judge’s judicial duties. Thus, we conclude the judge may attend an awards function/ceremony given in honor of the judge’s spouse incident to the spouse’s business or professional performance, and may accept free admission if offered (see 22 NYCRR 100.4[D][5][b]).

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¹ Forest rangers “are sworn Police Officers authorized to enforce all state laws, with special emphasis on Environmental Conservation Law and the protection of state lands and the public using state lands” (see Forest Rangers, https://www.dec.ny.gov/regulations/41086.html [accessed Feb. 26, 2020]; CPL 1.20[v]). In addition to parking and traffic infractions, they have issued tickets for “Fire Prevention Law Violations,” “ATV Violation,” “State Land Offense,” and “Fish and Wildlife Offense” (Forest Ranger Division Fact Sheet for 2018, https://www.dec.ny.gov/regulations/2369.html [accessed Feb. 26, 2020]).