Opinion 93-104

October 28, 1993

Digest:         An Acting County Court judge may preside in criminal cases investigated by the County Sheriff’s Department in which the judge’s child, an officer of that department did not personally participate, or any criminal case of any other police agency where the judge’s child did not personally participate.

Rules:          Code of Judicial Conduct, Canons 2 (B)(3)(C)(1), 3(C)(1)(c), 3(C)(1)(d) (iii), 100.2(b), 100.3(C)(1), 100.3(C)(1)(iii), 100.3(C)(1).

Opinion:

         A full-time judge, who may be called upon to serve as an Acting County Court judge, inquires whether it is permissible to preside in criminal matters where the County Sheriff’s department or any other police agency conducted the investigation. The judge’s adult child, who does not reside in the judge’s household, is employed as a “patrol officer” with the County Sheriff’s Department and has investigative duties which include “routine road patrol” and “navigational patrol”.

         Canon 3(C)(1) of the Code of Judicial Conduct states that “a judge should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned....” Section 100.3(c)(1) of the Rules of the Chief Administrator of the courts parallels Canon 3(C)(1), supra, and also provides that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned....”

         Canon 3(C)(1)(c) of the Code of Judicial Conduct specifies that disqualification is warranted where the judge “knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in the subject matter in controversy....” Section 100.3(c)(1)(iii) of the Rules of the Chief Administrator of the Courts also states that disqualification will be warranted where a “minor child residing in [the judge’s] household” has a financial or other interest in the controversy at hand.

         Canon 3(C)(1)(d)(iii) of the Code of Judicial Conduct states that the judge should disqualify himself or herself from presiding in a case where any person related to the judge or the judge’s spouse withiin the third degree “is known... to have an interest that could be substantially affected by the outcome of the proceeding.” Section 100.3(C)(1)(iv)(b) of the Rules of the Chief Administrator of the Courts contains a parallel provision.

         Canon 3(C)(1)(d)(iv) of the Code of Judicial Conduct states that a judge should disqualify himself or herself when any person within the third degree of relationship to the judge or the judge’s spouse is “to the judge’s knowledge likely to be a material witness in the proceeding.” A parallel provision is set forth in Rule 100.3(c)(1)(iv)(c) of the Rules of the Chief Administrator of the Courts.

         None of the foregoing Canons or Rules would require an Acting County Court judge uniformly to disqualify himself or herself from all criminal cases in which representatives of the County Sheriff’s Department, or representatives of other police agencies, might have participated. There is no need for recusal based solely on the grounds that the judge’s child is an employee of the County Sheriff’s Department. The judge’s child is an adult, does not reside in the judge’s household, and would in no event have any financial or other interest in the prosecution of criminal cases. The judge’s child would in no event serve as the attorney for the governmental authority prosecuting the criminal matter. The position held by the judge’s child within the County Sheriff’s Department, to wit, that of “patrol officer,” presumably does not entail responsibilities that would involve the judge’s child in every criminal case in which the department plays a role. There would be no reasonable expectation that the judge’s child would be a material witness in cases in which he had not participated.

         Under these circumstances, we conclude that the judge should not be required uniformly to recuse himself or herself from every case in which either a member of the County Sheriff’s Department, other than his or her child, had participated. We also conclude, a fortiori, that the judge should not be required to recuse himself or herself from every case in which members of police agencies other than the County Sheriff’s Department had participated. (See generally, Op. Adv. Com. Jud. Ethics [Vol. IV], 89-95;Op. Adv. Com. Jud. Ethics [Vol. VI], 90-91; Op. Adv. Com. Jud. Ethics [Vol. X], 93-08; Op. Adv. Com. Jud. Ethics [Vol. II], 88-101, 88-102; Op, Adv. Com. Jud. Ethics, [Vol. IX], 92-72; Op. Adv. Com. Jud. Ethics, [Vol. V], 90-53; Op. Adv. Com. Jud. Ethics, [ Vol. V], 90-05; Op. Adv. Jud. Ethics, 89-127).

         The duty of the judge to disqualify himself or herself would extend only to those matters in which his or her child was likely to appear as a witness or in which his or her child had actually participated (cf., Op. Adv. Com. Jud. Ethics [Vol. VI], 90-75).