Opinion 24-75
June 20, 2024
Digest: A judge whose first-degree relative is the county executive is disqualified in neglect proceedings where the county or its department of social services is a named party. Disqualification on this basis is 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)(d)(i)-(ii); 100.3(E)(1)(e); 100.3(E)(1)(e)(i); 100.3(F); Opinions 23-150; 21-101; 21-22(A); 19-92; 12-25.
Opinion:
The inquiring judge’s first-degree relative[1] is the county executive or chief administrative official of a county. The judge asks if it is ethically permissible to preside in neglect proceedings brought in that county by county attorneys. The petitions in these proceedings are captioned “In the Matter of the Department of Social Services” on behalf of a child alleged to be neglected.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, disqualification is required where a sixth-degree relative by blood or marriage is “an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]) or where a fourth-degree relative is “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Generally, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25). We note that remittal, where permitted, is a multi-step process requiring full disclosure on the record and affirmative consent of the parties (see generally Opinion 21-22[A]).[2]
While we have not previously addressed a judge’s obligations where their first-degree relative is the county executive, we find a close analogy to circumstances where the relative is the mayor of a municipality. In Opinion 19-92, the judge’s first-degree relative was a city’s mayor. We said the judge is disqualified, without the possibility of remittal, “if his/her first-degree relative is a party to the proceeding or is likely to appear in the courtroom as a witness” (id.). We also said the judge is disqualified, albeit subject to remittal, in “matters where the city is a named party” (id.). Beyond those two circumstances, we said disqualification “is not otherwise required merely because the city or a city department is an interested party, or city employees may be called as witnesses, or the city’s corporation counsel is prosecuting violations pursuant to authority delegated by the District Attorney,” as long as the judge’s relative has no personal involvement in the case, and absent any additional factors that would create an appearance of impropriety (id.).
Likewise, in Opinion 21-101, where a town justice’s spouse was the mayor of a village within the town, we said the judge (a) is disqualified, without the possibility of remittal, in matters where the judge’s spouse is expected to testify or is a named party, and (b) is disqualified, subject to remittal, “in matters where the village is a named party,” but (c) need not otherwise recuse from cases where the judge’s spouse has no personal involvement, merely because village employees will appear.
Our starting premise here is that the judge’s relative, as the county executive, ordinarily has no interest or involvement whatsoever in neglect proceedings. He/she is not expected to be named as a party, to appear as a witness or attorney, or indeed to have any special knowledge or awareness of, or any interest that could be substantially affected by, any neglect proceeding. Thus, the sole question for us is whether the county is a “named party” in neglect proceedings for purposes of the Rules Governing Judicial Conduct, notwithstanding that the petitions are captioned “In the Matter of the Department of Social Services” on behalf of a child alleged to be neglected. As described in Opinion 19-92 (emphasis added; citations omitted):
When the city or a city department is not a named party, but only an interested party, we believe disqualification is not required, provided the judge’s relative is not personally involved in the matter. Likewise, if city employees may provide testimony as sworn witnesses, disqualification is also not ordinarily required, if the judge’s relative is not personally involved in the case.
Where the city’s corporation counsel is prosecuting violations pursuant to authority delegated by the District Attorney, the judge may preside, absent other disqualifying factors, and again neither disclosure nor recusal is required, if the city is not a party to the action. As noted above, if the city is a named party to the action, the judge is disqualified, subject to remittal if no party is appearing without counsel and the judge can be fair and impartial.
From the information provided, it appears that neglect cases in the judge’s court are not brought in the name of a separate municipal entity (such as the State of New York) pursuant to authority delegated to the county attorneys. Rather, they are brought expressly in the name of a county department — the department of social services — which has the authority to bring such petitions. This makes the county a “named party” for judicial ethics purposes, and as the judge’s first-degree relative is the chief executive of the county, disqualification is required (see 22 NYCRR 100.3[E][1][d][ii]; Opinions 21-101; 19-92).
Disqualification on this ground is subject to remittal (see Opinions 21-101; 19-92). The process is succinctly summarized in Opinion 23-150 (citations omitted): “As always, remittal requires both full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent on the record of all parties and (if represented) their attorneys to waive or remit the judge’s disqualification. Thereafter, provided the judge concludes he/she can be fair and impartial and is willing to preside, the judge may participate in the proceeding.”
[1] A first-degree relative includes the judge’s spouse, a parent or child of the judge or his/her spouse, or the spouse of such person. Thus, it includes step-children, step-parents, a son/daughter-in-law, and a mother/father-in-law.
[2] Although inapposite here, we note that remittal is prohibited when a sixth-degree relative is “a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]; 100.3[F]) or when a second-degree relative “personally appears in the courtroom [as a lawyer or a material witness] during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).