Opinion 22-88

May 5, 2022

Digest:         1) Where a judge’s sibling is the Police Chief of a municipality, the judge is ordinarily disqualified from all matters involving that police department, including matters where the judge concludes the agency or its personnel have been or will likely be involved. However, the disqualification is subject to remittal if the judge’s sibling is unlikely to personally appear in the courtroom and remains permanently absent. As always, remittal requires full disclosure on the record of the basis for disqualification and is subject to the voluntary affirmative consent of all parties and, if represented, their counsel.

(2) With respect to trial-ready cases involving that police department, which were filed before the judge’s sibling became the Police Chief, and where another judge conducted and decided all evidentiary hearings:

(a) if a police officer is unlikely to be called in the matter, the judge may preside, provided the judge is not called upon to decide any issues whatsoever concerning the conduct or credibility of the police;

(b) if a police officer is called as a witness in the matter, the judge is disqualified from the matter, although the disqualification is subject to remittal if the judge’s sibling is unlikely to personally appear in the courtroom and remains permanently absent;

(c) if the judge’s sibling is likely to, or does, personally appear in the courtroom in the matter, the judge is disqualified and this disqualification is not subject to remittal.

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)(c); 100.3)(1)(d)(iii); 100.3(E)(1)(e)(i)-(ii); 100.3(F); Opinions 21-22(A); 21-15; 19-89; 19-59; 18-88.

Opinion:

         The inquiring judge’s sibling, a second-degree relative,¹ has recently become the Police Chief for the municipality in which the judge presides. The judge has been assigned “several trial ready cases” in which defendants were arrested and indicted by the city’s police department at a time before the judge’s sibling was named Police Chief. The judge notes that “all evidentiary hearings have already been conducted and decided by a previous Judge.”  The judge asks about his/her obligations with respect to disclosure and/or disqualification in these matters, given that “[t]he facts alleged in the cases obviously all occurred prior to my [sibling] being named Chief.” 

         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]). Where, as here, the relative is within 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 22 NYCRR 100.3[F]).

General Rule When Judge’s Second-Degree Relative Heads a Law Enforcement Agency

         We have said that 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” (Opinion 21-15 [emphasis added]). The disqualification requirement is similarly broad when a judge’s second-degree relative heads the agency. The difference is that remittal is possible when it is the judge’s second-degree relative who heads the law enforcement agency (see Opinion 19-59); when a judge’s first-degree relative (such as a spouse, parent, or child) heads a law enforcement agency, remittal is not possible at all (see Opinions 21-15; 19-89).

         Even so, disqualification is subject to remittal only if the judge’s sibling is unlikely to personally appear in the courtroom “and remains permanently absent” (22 NYCRR 100.3[E][1][e][ii]).² As a reminder, where disqualification is subject to remittal, the judge must not preside in the matter unless all parties (and, if represented, their counsel) freely and affirmatively consent after full disclosure on the record; a mere failure to object is not sufficient (see Opinion 21-22[A]).

Special Circumstance: Trial-Ready Cases Filed Before Relative’s Appointment

         We now turn to the facts presented here. Critically, the inquiring judge was assigned several trial-ready cases involving the municipality’s police department, which were filed before the judge’s sibling became the Police Chief, where another judge previously conducted and decided all evidentiary hearings.

         For these trial-ready cases where all evidentiary hearings have been completed, the initial question is whether or not a police officer under the judge’s sibling’s chain of command is likely to be called as a witness in the matter. If not, the judge may preside, provided the judge is not called upon to decide any issues whatsoever concerning the conduct or credibility of the police.

         However, if a police officer is called as a witness in these trial-ready cases, the judge’s sibling is in that police officer witness’s current chain of command. On these facts, even though the judge’s sibling was not in the chain of command at the time of the arrest and indictment, the judge must disqualify (see Opinion 19-59; cf. Opinion 18-88 [cases arising during second-degree relative’s prior tenure]).

         Because the judge’s sibling is a second-degree relative (rather than a first-degree relative), this disqualification is subject to remittal if the judge’s sibling is unlikely to personally appear in the courtroom and remains permanently absent (see Opinion 19-59; 22 NYCRR 100.3[E][1][e][ii]; 100.3[F]). As always, it is the parties’ choice whether or not to remit disqualification after the judge makes full disclosure on the record (see Opinion 21-22[A]).

         Conversely, if the judge’s sibling is likely to, or does, personally appear in the courtroom in the matter, the judge is disqualified and this disqualification is not subject to remittal (see 22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

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¹ Second-degree relatives include the grandchild, grandparent, or sibling of the judge or the judge’s spouse, or the spouse of such person.

² That is, if the judge’s sibling appears in the courtroom at any point in connection with a matter in which one of their subordinate police officers is involved, the judge is disqualified from that point.