Opinion 25-07

February 6, 2025

Digest:   A town justice may preside in cases where members of another municipality’s police union appear, notwithstanding that the judge was previously employed full-time as the president of that union and the judge’s first-degree relative now serves in that capacity, provided the judge can be fair and impartial and the judge’s relative is not involved in the case. 

Rules:    22 NYCRR 100.2; 100.2(A), (B); 100.3(E)(1); 100.3(E)(1)(e); Opinions 22-22(B); 17-41; 16-03; 14-166; 98-27; 93-104.

Opinion:

          The inquiring town justice, a former law enforcement officer, retired from service as “the elected, full time, union president” of another municipality’s police union over a decade ago.  The judge’s first-degree relative now serves as president of the union, and thus represents union members in “non-criminal matters of internal discipline.”  The inquiring judge has been asked to serve in a centralized arraignment part for the county.  On a “rotating schedule,” the judge would be called upon to act as an arraigning judge for cases throughout the county, including defendants arrested by union members.  The judge’s first-degree relative will not appear in the arraignment part, will not have any direct or indirect role in the investigation or prosecution of cases in the arraignment part, and does not supervise any of the officers that appear in the arraignment part.  The judge asks if he/she may preside in cases involving union members, given that the judge was employed as union president over a decade ago and the judge’s first-degree relative is currently the union president.

          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]).  Thus, a judge must not allow family, social, political, or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any case where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when a relative within the fourth degree of relationship “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]).

          Where the judge’s first-degree relative is employed by a police department in a non-supervisory position, the “basic guidepost” is whether the relative has had “direct participation in the matters before the Court” (Opinion 98-27).  Thus, for example, a judge may not preside in an arraignment in which the judge’s first-degree relative was the arresting officer (see Opinion 14-166).  Conversely, a judge whose child is an officer of the sheriff’s department may preside in criminal cases investigated by the department, provided his/her child did not personally participate in the case (see Opinion 93-104). 

          Likewise, we advised that a judge’s first-degree relative’s position with the police department in an administrative position with no direct or supervisory participation in any stage of criminal cases that may come before the court cannot reasonably call into question the judge’s impartiality in matters involving the police, provided the judge’s relative is not involved in the particular case (see Opinion 17-41).  Thus, neither disqualification nor disclosure of the relationship was required (see id.).  We reached the same conclusion when the judge’s spouse was employed as a security officer for the state police who advised the state police on technology issues (see Opinion 16-03).

          Here, the judge’s first-degree relative is president of a police union but will not appear in the arraignment part and will not have any part in the investigation or prosecution of cases in the arraignment part.  Nor does the judge’s relative supervise any of the officers that appear in the arraignment part.  In our view, the judge’s impartiality cannot reasonably be questioned in a criminal case merely because the law enforcement officer(s) involved are members of a union, of which the judge is a past president and the judge’s relative is the current president.

          Accordingly, we conclude that the judge may preside when a union member appears in the arraignment part, provided the judge can be fair and impartial and his/her first-degree relative is not involved in the case.  Disclosure of the relationship is not required.