Opinion 92-72

June 18, 1992

Digest:         A part-time judge whose spouse and brother-in-law are deputy sheriffs is not disqualified in criminal cases in which the county sheriff’s other deputies are involved, provided the judge’s spouse and brother-in-law were not in any way involved.

Rules:          22 NYCRR 100.3(c)(1)(iii) and (iv).

Opinion:

         A part-time judge whose spouse and brother-in-law are both employed as deputy sheriffs in the county were the judge’s court is located, inquires if disqualification is necessary in all cases where the sheriff’s department has been involved.

         Section 100.3(c)(1)(iii) of the rules of the Chief Administrator requires that a judge disqualify himself or herself in a proceeding where the judge’s spouse has “any interest that could be substantially affected by the outcome of the proceeding.”

         Section 100.3(c)(1)(iv) requires that a judge disqualify himself or herself when a person within the sixth degree of kinship or that person’s spouse is a party to the proceeding, has an interest which might be substantially affected by the outcome of the proceeding, or is likely to be a material witness to the proceeding. Consequently, the judge should be disqualified in any case in which the spouse or brother-in-law has been involved.

         However, disqualification in cases in which other employees of the sheriff’s department are involved is not required as the outcome of these proceedings would not in any way affect the positions of the judge’s spouse and brother-in-law. See this Committee’s Opinions 88-105, 90-53, 90-75 and 91-84.