Opinion 21-146

October 28, 2021

Digest:         An appointed judge whose second-degree relative is presently incarcerated or on parole for a sex offense (1) may preside in other sex offense cases, provided the judge can be fair and impartial, and need not make any disclosure to the parties; (2) need not make any disclosure to the appointing authority; and (3) may be a housing resource for their relative, but may not use the prestige of judicial office to advance the relative’s parole release conditions or other private interests.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(d)(i), (iii); 100.3(E)(1)(e); 100.4(A)(1)-(3); Opinions 17-77; 15-18; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         Before the inquiring judge assumed the bench, their second-degree relative¹ was convicted of a felony sex offense in a federal court outside of New York. The relative is currently incarcerated in federal prison but is scheduled to be released on parole. At the time of sentencing, the inquirer agreed to support this relative’s post-release plans by allowing the relative to live with the judge without charge while the relative seeks employment, independent housing, and any necessary support services. The relative’s anticipated move to New York will require registration under the Sex Offender Registration Act.

         The inquirer now serves by appointment in a court which may hear certain aspects of felony sex offense matters. The judge first asks if they must disclose “to the parties in a sex offense case which may be pending before the judge” or “to the appointing authority” that the judge “has a [second-degree relative] presently incarcerated or on parole for a sex offense.” The judge also asks if they may serve as a housing resource for a second-degree relative who is a federal parolee and a registered sex offender. The judge has already determined they can remain fair and impartial while presiding over cases involving sex offense charges.

         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 may engage in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in matters where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]); or in other specific circumstances required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge may not preside if the judge knows that a person within the sixth degree of relationship to the judge by blood or marriage “is a party to the proceeding” or “has an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][i], [iii]), or that a person within the fourth degree of relationship to the judge by blood or marriage “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Conversely, where disqualification is discretionary, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

1. Presiding in Other Sex Offense Cases

         We have advised that a judge may preside in cases of protestors, arrested on the same charges as the judge’s second-degree relatives, where the judge’s relatives are not parties and are unlikely to be material witnesses, provided the judge can be fair and impartial (see Opinion 15-18). As we explained (id. [citations and footnote omitted]):

Of course, the sole question here is whether the judge may preside in cases involving other protestors, who may have been arrested on the same charges as the judge’s second-degree relatives, but under circumstances where the judge’s relatives are not defendants and are not likely to be material witnesses. The Committee has advised that, provided the judge can remain fair and impartial, and absent any other disqualifying factor, a judge may preside in cases involving individuals charged with the same statutory offenses for which the judge him/herself was previously tried and acquitted or in a case involving legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters. Moreover, [we] advised that a judge may preside in a case involving civil disobedience demonstrators charged with disorderly conduct, even though the judge’s spouse supports the same cause, provided the judge can be impartial[.]

Here, too, we conclude the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in unrelated cases involving alleged sex offenders, even if they were arrested on state law sex offense charges similar to the federal charges brought against the judge’s second-degree relative, where the judge’s relative is not a defendant and is not likely to be a material witness. Therefore, provided the judge is satisfied they can be fair and impartial, the judge may preside in such matters. The judge need not disclose to the parties that the judge’s second-degree relative is presently incarcerated or on parole for a sex offense.

2. Disclosure to the Appointing Authority

         Likewise, we see no ethical obligation for the judge to make any disclosure to the judicial appointing authority concerning the judge’s relative’s conviction, sentencing, or release on parole, even if the relative will reside with the judge on parole.

3. Serving as a Housing Resource

         We have also advised that a judge may be a housing resource for a third-degree relative² on parole, but may not use the prestige of judicial office to seek exceptions to the parole board’s procedures (see Opinion 17-77). As we explained (id. [citations omitted]):

In general, a judge may take the same steps to protect or advance his/her direct, personal interests as other similarly situated individuals who are not judges. Accordingly, the Committee concludes this judge may likewise serve as a housing resource for a relative on parole.

However, the judge must be careful not to lend the prestige of judicial office in any discussion or negotiations with the parole board. In particular, the judge must not seek an exception to the parole board’s standard procedures based on his/her judicial status.

The same principles apply here. We therefore conclude this judge may likewise serve as a housing resource for a second-degree relative who is a registered sex offender and/or federal parolee. However, the judge must be careful not to lend the prestige of judicial office in any discussion or negotiations with the parole board.

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¹ While we cannot comment on legal questions, we understand that a town court clerk “shall be employed and discharged from employment only upon the advice and consent of the town justice or justices” (Town Law § 20[1][a]).

² Third-degree relatives include nieces, nephews, aunts and uncles by blood or marriage.