Opinion 94-52

April 28, 1994

Digest:         A judge is disqualified from presiding over matters in which the judge’s police lieutenant spouse or the spouse’s command was in any way involved, unless, following disclosure, all parties consent.

Rules:          22 NYCRR 100.3(c) and 100.3(d).

Opinion:

         A judge inquires whether it is necessary to disclose in all criminal cases over which the judge presides that the judge’s spouse is a lieutenant with the County Police Department currently assigned as a precinct operations officer.

         Section 100.3(c) of the Rules of the Chief Administrator provides:

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...

         Pursuant to the above section, the judge should be disqualified in any case in which the spouse or the spouse’s command appears before the judge or was in any way involved. As previously stated by the Committee in Opinion 90-75, Vol. VI, the judge also should inquire as to whether or not the spouse participated in the particular matter, at any stage, and if so, should invoke disqualification. Additionally, the judge should disclose the spousal relationship in each case in which officers under the spouse’s command or officers of the same precinct as the spouse participate or appear before the judge.

         As also previously stated by this Committee, in Opinion 91-56 , Vol. VII, if the judge feels he or she can be impartial, instead of withdrawing from the proceeding, the judge may disclose, on the record, the nature of the relationship. In such event, the provisions of section 100.3(d) of the Rules of the Chief Administrator may be invoked. That section provides that [“i]f, 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 ... 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.”