Opinion 23-40
March 23, 2023
Digest: A judge is not disqualified from presiding over an Article 78 proceeding to compel a police department to disclose certain disciplinary records merely because the judge’s spouse, now fully retired, was formerly a high-ranking police official in another county.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); Opinions 18-131; 17-178; 16-59; 16-03; 12-75; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge has been assigned a CPLR Article 78 proceeding seeking to compel a county and its police department to disclose a certain category of law enforcement disciplinary records. As the judge’s spouse is a retired high-ranking officer from a police department in another county, the judge asks if disclosure or disqualification is required.[1]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence their judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in any case where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Disqualification is required, for example, if the judge’s spouse has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]) or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]).
In this instance, there is no interest on the part of the judge’s spouse that would be substantially affected by these proceedings nor is the spouse likely to be a material witness in the proceedings. The spouse, now retired for over a decade, was employed in a different county from the police department at issue here, and therefore was not involved in any of the disciplinary matters that are the subject of the Article 78 petition. In addition, the spouse’s own records, if there are any, would not be a subject of the present proceeding.
The judge’s impartiality also cannot “reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]) in a matter involving one police department, merely because the spouse’s former employer is another police department. In this regard, we note that our prior opinions permit a judge to preside in matters involving the same police agency that currently employs the judge’s spouse, as long as neither the judge’s spouse nor any officers under the spouse’s supervision have any involvement with the case (see e.g. Opinions 17-178 [town justice whose spouse is a high-ranking officer in the local police department with strictly administrative responsibilities need not recuse in matters involving the town police, where neither the judge’s spouse nor any officer under the spouse’s supervision has any involvement in the case]; 16-03 [judge whose spouse is “a statewide information security officer for the state police and internally advises that agency on technology issues” need not disclose or disqualify in matters involving the state police, where the spouse’s unit has no involvement with matters that may come before the court]; cf. Opinion 12-75 [trial court judge “may preside in a matter that involves legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters”]). Our opinions also permit judges who were themselves previously law enforcement agents or prosecutors to preside in criminal matters and other cases involving the police, subject to similar limitations (see e.g. Opinions 18-131 [town justice who previously served as the town’s Assistant Chief of Police may preside over entirely new matters involving the town police]; 16-59 [judge who “served as local prosecutor for many years” in a lightly populated municipality may nonetheless preside in a “case involving recent, high profile allegations of misconduct by the local police,” provided judge “had no involvement in the current matter”]).
Accordingly, we conclude the judge may preside in this Article 78 proceeding, provided the judge can be fair and impartial. This determination is left to the judge’s sole discretion (see generally People v Moreno, 70 NY2d 403 [1987]).
[1] While the judge is not aware of any disciplinary record pertaining to the judge’s spouse, the judge also notes that disclosure could not adversely affect the judge’s spouse, who retired years ago and “has no plans to return to work.”