Opinion 92-17

January 30, 1992

Note: Former sections 100.3(c)(1)(iv) and 100.3(d) have been amended and renumbered as sections 100.3(E)(1)(d)(i) and 100.3(F). Remittal of disqualification is no longer available in a proceeding where the judge knows that a sixth-degree relative (by blood or marriage) is a party to the proceeding. See 22 NYCRR 100.3(F). Accordingly, this Opinion 92-17 has been implicitly overruled or modified, in part, by a subsequent amendment to the Rules.

Digest:         A judge may not preside over cases involving relatives within the sixth degree of consanguinity, including nieces and second cousins, unless the disqualification is remitted.

Rules:          22 NYCRR 100.3(C)(1)(iv) and 100.3(d).

Opinion:

         A part-time judge, as the only judge in the court in a small community, inquires about the propriety of presiding over cases involving family members, including a niece and second cousins.

         Section 100.3(c)(1)(iv) of the Rules of the Chief Administrator governs the issue of disqualification and expressly provides that a judge must disqualify himself or herself in a proceeding where "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.... is a party to the proceeding. ..."

         It clearly is improper for the judge to preside in a case involving relatives who fall within the proscribed range of consanguinity. That no other judge is available in the court does not alter the rule.

         It may be noted, however, that disqualification under this section may be remitted under section 100.3(d) which provides:

(d) Remittal of disqualification. A judge disqualified by the terms of subparagraph (c)(1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge's participation, all agree that the judge's relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.