Opinion 19-59

May 2, 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.” 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 second-degree relative is undersheriff (1) may not preside in matters involving the county sheriff’s department unless the disqualification is properly remitted but (2) may conduct centralized arraignment program arraignments not involving the county sheriff, even if held at the sheriff’s offices.

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 18-88; 17-150; 16-175; 16-160; 16-67; 13-108; 13-65; 11-09/11-12; 10-184; 09-242; 09-19; 08-50; 07-73; 06-111; 03-112; 98-152; 98-27; 94-52; 93-104; 90-151.

Opinion:

         The inquirer’s second-degree relative is the county’s undersheriff.¹ Most cases in the court where the judge would sit involve the state police and the county sheriff’s department.² The undersheriff is second in command and is on a rotation once every six weeks to be the administrator on call. During this time, the undersheriff may be directly involved in cases. The judge asks whether he/she may preside in any sheriff’s department cases; in cases in which the relative is not directly involved; or in cases involving the state police, if the sheriff’s department “assisted in any part of the case.” The judge further asks if he/she may preside over centralized arraignment program arraignments held at the sheriff’s offices.

         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 shall 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 him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge’s spouse or a person known by the judge to be within the fourth degree of relationship to the judge or the spouse, by blood or marriage, is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         We have advised that a judge may not preside over any matter in which a relative within the fourth degree is a law enforcement officer who has actually participated in, is personally involved in, or appears in the case (see Opinions 10-184 [judge’s niece’s spouse is deputy sheriff]; 98-152 [judge’s grandnephew is police officer in same village]; 93-104 [judge’s child is officer with county sheriff’s department]; 90-151 [judge’s child is police officer]).

         Moreover, where a first-degree relative serves in a supervisory capacity, a judge may not preside in cases involving other law enforcement officers under the relative’s command (see Opinions 16-160 [judge whose first-degree relative is police chief for municipality where judge presides is disqualified in any matter involving municipal police department or its officers]; 13-65 [spouse is sergeant with sheriff’s office road patrol]; 09-242 [relative in charge of road patrol division of county sheriff’s department; judge disqualified when officers subject to relative’s supervision appear]; 94-52 [judge whose spouse is police lieutenant disqualified, subject to remittal, in matters involving other officers under spouse’s command or from spouse’s precinct]). After all, a relative’s supervisory position means the relative “may be deemed ‘personally involved’ in all matters he/she directly supervises” (Opinion 13-108). Where the relative “is at the very highest levels of an organization, the obligations are presumptively greater” (Opinion 16-67 [discussing prior opinions]). Thus, we have also advised that a judge whose first-degree relative serves as undersheriff is disqualified, subject to remittal, when other officers from the same sheriff’s department appear in the judge’s court (see Opinion 08-50).

         Here, the same principles apply. Relationships within the second degree of consanguinity “denot[e] a more intimate and significant family connection” (Opinion 06-111; see also Opinion 18-88 [judge disqualified from all matters pending during second-degree relative’s tenure as sheriff]; 17-150 [disqualification required where non-supervisory second-degree relative personally appears or participates as counsel behind the scenes]). Since the judge’s relative, as undersheriff, is in the direct chain of command over all road deputies, the judge is disqualified from all cases involving the sheriff’s department. The judge need not, however, separately scrutinize all pleadings to determine whether the sheriff’s department assisted in any part of the case but must disqualify if the department’s role is actually known or readily available (cf. Opinions 16-175 [ticketing officer is client of judge; client’s role as issuing officer readily available when, for instance, the officer’s name appears on the ticket]; 09-19 [supervising police sergeant is client of judge; if judge learns that sergeant, although not appearing, is involved in a matter, judge should disqualify]).

         While remittal is generally permitted in cases where the relative merely supervised those officers who were directly involved, remittal is not available if the matter is before the judge ex parte (see Opinions 07-73; 98-27), if any party appears without counsel, or if the judge doubts his/her ability to be impartial (see Opinion 17-150 [note on remittal]). Remittal is also forbidden if the judge’s relative personally appears in the courtroom or is likely to do so (see 22 NYCRR 100.3[F]; Opinion 17-150).³

         The judge may preside over centralized arraignments not involving the county sheriff, even if held at the sheriff’s offices, subject to legal and administrative constraints (see Opinions 11-09/11-12 [judge may conduct after-hours arraignments in public area of police facility if there are valid security reasons to do so and if holding such proceedings at police facility rather than local court facility is not in violation of law]; 03-112 [night arraignments at park police facility]).

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¹ Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, we do not distinguish between relatives by blood or by marriage.

²Although the inquirer is currently seeking judicial office, we will refer to him/her as a “judge” for convenience because the question relates solely to his/her obligations if and when he/she assumes judicial office.

³As a reminder, where permitted, remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see e.g. 22 NYCRR 100.3[F]; Opinion 17-150 [note on remittal]).