Opinion 89-112

September 12,1989

Digest:         A town justice is not required to disqualify himself or herself from presiding over a proceeding, nor to make disclosure on the record, when the district attorney or an assistant district attorney appears before the justice, merely because the justice’s first cousin is an assistant on the district attorney’s staff, but the justice may not preside if the cousin personally appears.

Rules:          22 NYCRR 100.3( c)

Opinion:

         A town justice, whose court is located in a large metropolitan county, asks the Committee whether a justice must disqualify himself or herself, or make disclosure on the record, if a matter comes into the justice’s court in which the district attorney or an assistant district attorney appears, if a first cousin of the justice is an assistant district attorney in the county.

         The Committee notes that section 100.3 ( c)(v) reads in relevant part 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: . . .(v) the judge or the judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such person is acting as a lawyer in the proceeding.

         Clearly this provision would require a justice to recuse himself or herself if the justice’s first cousin personally appeared. However, it is in the opinion of the Committee that it is unnecessary for a justice to recuse himself or herself from presiding over a criminal case merely because the justice’s cousin is an assistant district attorney, where the District Attorney’s office is represented in the case by a person other than the cousin. In the absence of exceptional circumstances, this situation would not reasonably give rise to an appearance of impropriety, bias or partiality on the part of the justice.

         The Committee distinguishes this situation from that addressed in Joint Opinion 88-101, 88-102 where the Committees stated, inter alia, that a Supreme Court justice, whose spouse is an assistant district attorney, while not required immediately to disqualify himself or herself in a case where another representative of the district attorney’s office appears, nevertheless, would be required to disclose on the record that the spouse is a member of the district attorney’s staff, and would be permitted to preside only if both parties consent. In that Opinion the Committee said, “an . . . assistant district attorney who is the spouse of the justice may be seen to have an interest that could be substantially affected by the outcome of the proceeding . . .”, citing 22 NYCRR 100.3 ( c)(iv)(b).

         The Committee believes that a first cousin of the justice who happens to be a member of the district attorney’s staff, but who is not appearing before the justice, would not be seen as having an interest in the outcome of a case. There is a significant difference in the appearance to the public between a justice’s spouse and a justice’s cousin being associated with the district attorney’s office with respect to the justice hearing cases emanating from that office.

         The inquiring justice also poses a hypothetical question as to the Committee’s views if the assistant district attorney-relative of the justice were the justice’s son or daughter. Since this is not the factual situation with respect to this justice, the Committee does not address that question at this time.