Opinion 19-89

October 24, 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:         (1) If a town judge’s first-degree relative becomes town police chief, the judge is disqualified from all cases involving the town police department. This disqualification is not subject to remittal, and Opinion 16-160 is accordingly modified in that respect as of January 1, 2020.

(2) If the judge’s first-degree relative becomes captain of the town police’s detective division, the judge is disqualified in matters in which the detective division is involved. This disqualification is subject to remittal after full disclosure on the record, provided the judge’s relative will not be physically present in the courtroom and no party is appearing without counsel.

(3) The judge may appoint counsel where legally authorized and appropriate but not for the sole purpose of facilitating remittal of the judge’s disqualification. The judge may provide forms to expedite the disclosure/remittal process, provided there is full disclosure of the basis for disqualification, consent by all of the parties and their attorneys, and both disclosure and remittal must be incorporated into the record.

Rules:          County Law art. 18-B § 722; 22 NYCRR 100.2; 100.2(A); 100.2(B): 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(i); 100.3(F); Opinions 19-59; 19-51; 16-175; 16-160; 16-101; 16-67; 15-82; 14-81; 14-48; 13-65; 10-05; 09-242; 08-50.

Opinion:

         A town justice’s first-degree relative¹ is under consideration for the position of Police Chief of the local police department. Although the Police Chief is the head of the department, he/she would not typically be directly supervising, personally appearing in the courtroom, or otherwise directly involved in matters that come before the town court. Alternatively, the judge’s relative may be appointed captain of the detective division. This division is involved in a relatively small number of cases in the town court, as they generally handle “felony cases where there is no immediate arrest at the time of the crime and [the matter] requires follow up by the detectives.” The judge says the detective division cases are easily identified on the face of the papers and would be further earmarked or flagged as such. The detective division has a separate chain of command and does not oversee the patrol division which handles Vehicle and Traffic law tickets, cases involving charges of driving while intoxicated (DWI), and the like. The judge asks about his/her ethical obligations in each scenario and further asks about facilitating the remittal process.

         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 his/her spouse, by blood or marriage, is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

1. Judge’s First-Degree Relative as Police Chief

         We previously said that a judge whose first-degree relative is police chief is disqualified, subject to remittal, in all cases involving that police department (see Opinion 16-160). On further consideration, however, we believe remittal should not be permitted here. Where a judge’s spouse, child, or parent is the head of a law enforcement agency, we deem him/her personally involved in all matters involving that agency. We note the unique role of law enforcement in criminal cases. For example, they issue tickets based on personal knowledge, conduct investigations and apply for search warrants and arrest warrants, make arrests and are responsible for bringing defendants to court, and regularly testify against defendants. It would be difficult, if not impossible, for a defendant facing charges involving the law enforcement agency headed by the judge’s spouse, parent, or child to believe the judge can be fair and impartial in such matters and will hold the prosecution to its Constitutional burden of proof. We worry, as well, that permitting remittal of disqualification could subtly undermine the defendant’s right to counsel. For example, if defense counsel frequently appears in the judge’s courtroom or regularly accepts 18-B assignments from the judge, the defendant may fear that remittal of disqualification serves the attorney’s interests rather than those of the defendant.

         We therefore conclude that, if the judge’s first-degree relative becomes the town police chief, he/she is disqualified from all cases involving the town police. Thus, for example, the judge may not handle mail pleas on tickets issued by the town police or proposed plea agreements offered by the town prosecutor on tickets issued by the town police (see Opinion 16-160; cf. Opinions 16-175; 13-65). Remittal is unavailable.

         As this portion of the outcome specifically overrules a portion of Opinion 16-160, we grant it an effective date of January 1, 2020, to allow time for publication and distribution of the opinion (cf. Opinions 16-101; 14-48). Accordingly, Opinion 16-160 is hereby modified as of January 1, 2020 to prohibit remittal of disqualification in police matters when a judge’s first-degree relative is police chief.

         To the extent a judge whose first-degree relative is police chief has already secured remittal of disqualification in a particular case before issuance of the present opinion, we note that the remittal remains valid, from an ethics perspective, if it was appropriate at the time it was obtained (see generally Opinion 15-82).

         Finally, we note this reasoning is limited to law enforcement agencies (e.g. police departments or a sheriff’s office), in which the judge’s first-degree relative serves as the head of the agency (rather than a lesser supervisory role). Thus, for example, remittal of disqualification is still available where a judge’s first-degree relative is the District Attorney or heads a probation department (see e.g. Opinions 16-67 [first-degree relative heads the probation department]; 10-05 [spouse is the County Attorney]). Remittal also remains available when more distant relatives (such as siblings, nieces/nephews, or cousins) head a law enforcement agency.

2. Judge’s First-Degree Relative as Captain of the Detective Division

         If the judge’s first-degree relative does not accept the position of police chief but, instead, accepts a position as captain of the town police’s detective division, the scope of disqualification is based on the relative’s place in the chain of command (see e.g. Opinions 08-50 [first-degree relative is undersheriff]; 19-59 [second-degree relative is undersheriff]; 09-242 [first-degree relative is in charge of the sheriff’s road patrol division]; 13-65 [spouse is a sergeant in the sheriff’s road patrol division]; 19-51 [first-degree relative is line police officer]). Moreover, the judge’s disqualification will be subject to remittal in appropriate circumstances (see e.g. Opinions 19-59; 08-50).

         Thus, if the judge’s first-degree relative becomes captain of the detective division, the judge must disqualify him/herself, subject to remittal where permitted, on all matters involving the detective division (i.e. matters under the judge’s relative’s supervision or chain of command), rather than all town police matters (see e.g. Opinions 13-65; 09-242; 08-50).

         As a reminder, remittal is not permitted if (a) any party is appearing without counsel, (b) the judge’s first- or second-degree relative is likely to be physically present in the courtroom, or (c) the judge is unwilling to make full disclosure (see 22 NYCRR 100.3[E][1][e][i]; Opinion 19-59).

         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]; Opinion 19-59 n 3). 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.).

         In town police matters that do not involve the detective division and in which his/her relative has absolutely no involvement, the judge has no obligation to disclose and may preside if he/she can be fair and impartial. The judge may, if he/she wishes, make a purely prophylactic disclosure of his/her relative’s employment as captain of the detective division. Because this disclosure is not mandated, but is within the judge’s sole discretion, the judge also retains full discretion to preside, even if the defendant is appearing without counsel and/or even if either side objects (see, e.g. Opinion 14-81 [discussing prophylactic disclosures]).

3. Facilitating the Remittal Process

         The judge also asks two questions about facilitating the remittal process. First, where a party is appearing without counsel, the judge asks if he/she may appoint assigned counsel for the sole purpose of facilitating remittal of the judge’s disqualification. The judge may, of course, appoint an attorney where it is legally authorized and appropriate consistent with applicable law (e.g. County Law art. 18-B § 722). But the judge should not appoint an attorney for the sole purpose of facilitating remittal of the judge’s disqualification.

         Lastly, the judge asks if he/she may accomplish remittal by “memorializing the remittal in written form on court letterhead where both parties can review the disclosures (outside the presence of the judge) and sign the form so that it becomes part of the record as required.” At an arraignment or other proceeding where the defendant’s attorney “is appointed on the spot,” the judge would hold a second call “to allow time for the defendant to discuss the matter with counsel.”

         If the judge wishes to expedite the remittal process, “any system the judge adopts must, at a minimum, involve full disclosure of the basis for disqualification and … consultation with the client” (Opinion 16-67). As noted above, 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.). Provided that the judge’s proposed forms meet these requirements, we believe it is permissible.

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¹ Relatives within the first degree of relationship include the judge’s spouse, as well as a child or parent by blood or marriage.