Opinion 19-92

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) Where a judge’s first-degree relative is a city’s mayor:

(a) The judge is disqualified, without the possibility of remittal, if his/her first-degree relative is a party to the proceeding or is likely to appear in the courtroom as a witness;

(b) The judge is disqualified, subject to remittal, in matters where the city is a named party;

(c) Disqualification is not otherwise required merely because the city or a city department is an interested party, or city employees may be called as witnesses, or the city’s corporation counsel is prosecuting violations pursuant to authority delegated by the District Attorney, provided the judge’s relative has no personal involvement in the case, and absent any additional factors that would create an appearance of impropriety.

(2) Where a judge’s third-degree relative heads the county’s social services department, the judge is disqualified, subject to remittal, from cases in which that department is a named party.

Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(I)-(ii); 100.3(E)(1)(e) & (e)(I); 100.3(F); Opinions 18-25; 18-12; 17-150; 17-118; 16-67; 12-25; 10-146; 05-103.

The inquiring judge’s first-degree relative¹ is a candidate for mayor of the city where the judge presides. If the relative becomes mayor, the judge asks if he/she may preside in cases where the city or one of its departments is a named party or an interested party; city employees are likely witnesses; and/or corporation counsel is serving as prosecutor rather than the District Attorney (e.g. violations of city ordinances, traffic infractions, parking tickets, and housing code violations).² The judge also asks if he/she may preside in cases where the county’s social service department is a party, as its Commissioner is the inquiring judge’s aunt/uncle, a third-degree relative. The judge also asks about the remittal process.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, disqualification is required where a sixth-degree relative by blood or marriage is “a party to the proceeding” (22 NYCRR 100.3[E][1][d][I]) or “an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]); or where a fourth-degree relative is “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Generally, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25).

Preliminarily, we note two instances where a judge’s disqualification is not subject to remittal: if a sixth-degree relative is “a party” to a case before the judge (22 NYCRR 100.3[E][1][d][I]; 100.3[F]; Opinion 05-103), or if a second-degree relative is likely to be physically present in the courtroom as a lawyer or a witness (see 22 NYCRR 100.3[E][1][e][I]; 100.3[F]; Opinion 17-150). Thus, this judge is disqualified, without the possibility of remittal, if his/her first-degree relative is a party or personally appears in the courtroom during the proceeding as a witness, or is likely to do so.

A judge whose first- or second-degree relative is the town supervisor or village mayor is disqualified in any proceeding in which the town or village is a party (see Opinions 17-118; 10-146; 05-103). Similarly, a judge whose spouse is a county legislator is disqualified in cases where the county legislature is a named party (see Opinion 18-12). Likewise, if this judge’s first-degree relative becomes the city’s mayor, the judge is disqualified whenever the city is a named party (see 22 NYCRR 100.3[E][1][d][ii]; Opinion 05-103). Remittal is unavailable if the judge’s first-degree relative is likely to appear personally in the courtroom as a witness (see 22 NYCRR 100.3[E][1][e][I]; Opinion 17-150). Otherwise, remittal is generally permitted, provided the judge can be fair and impartial and no party is appearing without counsel (see Opinions 17-118; 10-146; 05-103; see also Opinion 17-150 [Reminder on Remittal Procedures]).

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 17-150 [Reminder on Remittal Procedures]). Once these steps are satisfied, the judge may preside after incorporating the agreement in the record (see id.).

When the city or a city department is not a named party, but only an interested party, we believe disqualification is not required, provided the judge’s relative is not personally involved in the matter (cf. Opinion 18-25 [declining to comment “on legal questions, such as who is an ‘interested person,’ ‘interested party,’ or ‘party’”]). Likewise, if city employees may provide testimony as sworn witnesses, disqualification is also not ordinarily required, if the judge’s relative is not personally involved in the case.

Where the city’s corporation counsel is prosecuting violations pursuant to authority delegated by the District Attorney, the judge may preside, absent other disqualifying factors, and again neither disclosure nor recusal is required, if the city is not a party to the action (see Opinion 17-118). As noted above, if the city is a named party to the action, the judge is disqualified, subject to remittal if no party is appearing without counsel and the judge can be fair and impartial (see 22 NYCRR 100.3[F]; Opinions 17-150 [Reminder on Remittal Procedures]; 10-146; 05-103).

Finally, the judge asks if he/she may preside in a case where the county department of social services (DSS) is a party, since the head of DSS is the judge’s aunt/uncle.

Again, disqualification is required in any proceeding where a relative within the sixth degree of relationship is an officer, director, or trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]). Disqualification on this ground is ordinarily subject to remittal (see 22 NYCRR 100.3[F]; cf. Opinion 16-67).

Thus, we conclude this judge is disqualified, subject to remittal, in all cases where DSS is a party. As always, remittal is unavailable if any party is appearing without counsel or if the judge questions his/her ability to be fair and impartial (see Opinion 17-150 [Reminder on Remittal Procedures]).

Although the judge has not asked about his/her obligations if his/her third-degree relative is a party or is likely to be a material witness in the proceeding, for completeness, we note disqualification is required at the outset in both instances. Remittal is available when a third-degree relative is called to testify, but not when a third-degree relative is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i];100.3[E][1][e]; 100.3[F]).

¹ First-degree relatives include the parent or child of the judge or his/her spouse, or the spouse of such a person.

² Most defendants in these proceedings appear without counsel. In housing code violation matters, an inspector from the city code enforcement department would likely testify.