Opinion 21-15

January 28, 2021

Digest:         (1) A judge whose first-degree relative heads a law enforcement agency must disqualify from all matters involving the agency, including matters where the judge concludes the agency or its personnel have been or will likely be involved. Remittal is not permitted.
(2) While the judge need not undertake an active inquiry or other extraordinary measures in every criminal matter, the judge must adopt reasonable procedures to avoid presiding over matters involving the agency, such as making reasonable inquiry if the judge suspects the agency was or may become involved in a particular matter.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-89; 18-118; 15-147; 11-139.

Opinion:

         The inquiring judge asks about presiding in cases in which a law enforcement agency (the Agency) is involved where their first-degree relative¹ is the highest-ranking official at that agency. It is not always predictable at the outset whether the Agency will be involved in a case before the judge.

         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 disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), or in any of the specifically enumerated circumstances set forth by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge may not preside when the judge knows a sixth-degree relative “has an interest that could be substantially affected” (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]) or a fourth-degree relative is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         Here, the inquiring judge’s first-degree relative heads the Agency; literally all employees of the Agency are within the relative’s chain of command. In such instances, “we deem [the judge’s relative] personally involved in all matters involving that agency” (Opinion 19-89) and require the judge to disqualify from all cases involving the Agency. Moreover, as explained in Opinion 19-89, this disqualification is not subject to remittal:

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.

         Since the judge is unlikely to be able to identify with unerring accuracy the numerous circumstances in which the Agency was involved or may become involved this judge must adopt “reasonable procedures to avoid presiding over matters” involving, or likely to involve, the Agency or its personnel (Opinion 18-118).

         We believe it would be unduly burdensome and unnecessary for the judge to determine whether or not any Agency officer or employee was involved in every accusatory instrument, application or motion before the judge. Therefore the judge’s obligation to disqualify applies to those cases, both pre and/or post judgement, in which the judge knows or it is clearly brought to the judge’s attention that Agency officials or the Agency were involved or will likely be involved.

         That is, we do not require a judge to conduct an active search or otherwise take extraordinary steps to uncover possible former involvement by the Agency in every accusatory instrument before the judge (cf. Opinion 18-118). Certainly, if the judge has no reason to suspect that the Agency or its personnel have been or will likely be involved in the matter, the judge may preside.

         However, if the judge suspects a matter has involved the Agency, the judge must ask the parties and/or their counsel or take other reasonable and appropriate action to determine if the Agency has been involved in the matter (cf. Opinion 11-139). If so, the judge must disqualify.

         If the judge suspects a matter may potentially involve the Agency, the judge must likewise take reasonable and appropriate action to determine if the Agency will likely be involved in the matter. For example, the judge may inquire of the prosecution, on the record, in the presence of a represented defendant and counsel, or any other legally sufficient non ex parte manner, concerning the likelihood that the Agency will be involved and to what extent or in what capacity that involvement is likely to happen (cf. Opinion 11-139). After inquiry and after giving all parties and counsel the opportunity to be heard, the judge must determine if the Agency will likely become involved in the proceeding. If so, the judge must disqualify.

         Assuming the judge concludes the Agency was not involved and will not likely be involved in the matter, the judge may preside.

         We emphasize that the judge’s good-faith conclusion on this issue is not rendered improper if the Agency later becomes involved in the case. That is, where the judge is already presiding in a case in good faith, but later learns that the Agency has become involved or will likely become involved, the judge must simply disqualify upon learning of the conflict (see Opinion 15-147).

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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.