Opinion 20-37

March 19, 2020

Digest:         A judge whose second-degree relative is a caseworker for the department of social services is disqualified in all matters where the relative is personally involved, whether as the named petitioner or as a likely witness. The disqualification is not subject to remittal.

Rules:          Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(I); 100.3(E)(1)(e); 100.3(E)(1)(e)(I); 100.3(F); Opinions 17-150; 15-06.

Opinion:

         A judge’s second-degree relative¹ is employed as a caseworker for the department of social services. The judge asks if he/she is required to recuse him/herself in matters where the relative (1) appears as a named petitioner on behalf of the department or (2) may appear as a witness.

         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 must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must disqualify him/herself in any proceeding in which his/her impartiality “may reasonably be questioned” (22 NYCRR 100.3[E][1]), including when specified by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge must disqualify, without the possibility of remittal, when he/she knows that a sixth-degree relative is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][I]). A judge must also disqualify when he/she knows that a fourth-degree relative “is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Where, as here, the relative is with the second degree of relationship, remittal is not available “if such person personally appears in the courtroom or is likely to do so” (22 NYCRR 100.3[E][1][e][I]; see also 100.3[F]).

         Applying these principles, we said a judge whose first-degree relative is a social worker without supervisory responsibilities in the local probation department’s domestic violence division is disqualified from all cases in which his/her relative is personally involved (see Opinion 15-06). Remittal is unavailable if the judge’s second-degree relative “personally appears in the courtroom” or is likely to do so (see Opinion 17-150; 22 NYCRR 100.3[E][e][I]).

         Here, too, we conclude the inquiring judge must disqualify him/herself, without the possibility of remittal, in all matters where his/her second-degree relative is personally involved, whether as a named petitioner or as a likely witness.

         Disqualification is not otherwise required merely because the department of social services is a party or its employees may be called as witnesses, provided the judge’s relative has no personal involvement in the case and absent any additional factors that would create an appearance of impropriety (see Opinion 15-06).

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¹ When analyzing disqualification requirements, we do not distinguish between relatives by blood or by marriage. Thus, the second degree of relationship includes, for example, a sibling of the judge or his/her spouse, or the spouse of such person (see 22 NYCRR 100.0[C]).