Opinion 88-57

May 9, 1988

Topic: Disqualification in conservation matters where Village Justice’s spouse is Regional Forester in charge of state lands.

Digest: Village Justice should disqualify him/herself where the justice’s spouse, who is the Regional Forester in charge of state lands, initiates or directs initiation of proceeding involving conservation violations, or where the spouse may be a material witness in such a matter, but justice may preside over conservation violation proceedings initiated by others, provided full disclosure of the spouse’s position is made.

Rules: 22 NYCRR §100.3(c)(1)(I); 100.3(c)(1)(iv)(a)(b)(c); 100.3(d).

Opinion:

A Village Justice whose spouse is a Regional Forester in charge of state lands, asks whether he/she should disqualify him/herself in matters involving conservation violations.

The information submitted by the Justice is extremely limited and does not indicate the scope of the spouse’s duties as Regional Forester beyond stating that he/she is in charge of state lands in a nine-county area. This opinion is predicated upon the assumption that proceedings involving various conservation violations are initiated by the Forester’s office. (See Environmental Conservation Law Sections 71-0505 and 71-0507.)

Disqualification of a judge is covered by Chief Administrator’s Rule 100.3(c) as follows:

(c) Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(i) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

* * * *

(iv) the judge or the judge’s spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person:

(a) is a party to the proceeding, or an officer, director, or trustee of a party;

(b) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

Based upon the foregoing, if the judge feels that he/she has some personal bias or prejudice generally concerning conservation violations or believes that he/she has certain personal knowledge about such violations which would impact unfairly upon his/her rulings, then he/she should disqualify him/herself from all such cases. If, however, the judge believes he/she can objectively preside over cases involving these types of violations, the issue becomes one of the extent to which he/she must disqualify him/herself by reason of his/her spouse’s supervisory position which it is assumed involves some law enforcement aspects.

If Rules 100.3(c)(1)(i)(iv)(a) and (b) are very narrowly construed, they could be interpreted as having application to this situation because the judge’s spouse (as the person in charge of a sizeable region) could be considered akin to an officer or director of a party (i.e., the agency charging the conservation violation) which would require disqualification in all cases brought by that agency.

This aforementioned interpretation, however, would be both unrealistic and unnecessary since it does not appear that this is really the kind of involvement or interest that the Rule is meant to address. To the extent, however, that a proceeding involving a conservation violation is initiated personally by the judge’s spouse, or at his/her direction, the judge should disqualify him/herself, since in those situations the spouse takes on the aspect of a party to the proceeding. Disqualification would also be required under subparagraph (i) (iv) (c) of the rule if the spouse is likely to be a material witness in the particular proceeding. Of course, the judge’s disqualification under these circumstances could be remitted pursuant to 100.3(d), which provides that:

(d) Remittal of disqualification. A judge disqualified by the terms of subparagraph (c)(1)(iii) or (iv) of this section may, instead of withdrawing from the proceeding, disclose on the record the basis of the disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

In cases involving conservation violation proceedings initiated by others, and in which the spouse has no direct involvement, there would appear to be no requirement that the judge disqualify him/herself. In such situations, however, he/she should fully disclose on the record his/her relationship with the Regional Forester and if requested by either party to disqualify him/herself, should do so.

This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.