Opinion 94-55

June 16, 1994

Digest:         A town justice is disqualified from presiding over proceedings initiated by a conservation officer who is married to a sister of the judge's spouse.

Rule:            22NYCRR 100.3 (c)

Opinion:

         A town justice inquires whether he/she is disqualified from hearing cases initiated by a New York State Department of Conservation Officer who is the judge's spouse's brother-in-law.

         Rule 100.3(c) of the Rules of the Chief Administrator provides in part that: “(1) A judge shall disqualify himself or herself in a proceeding in which ... (iv) 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 person: ... (c) is to the judge’s knowledge likely to be a material witness in the proceeding...”.

         Under this Rule the inquiring judge is disqualified from presiding in any civil or criminal proceeding initiated by the judge's spouse's brother-in-law as such spouse's brother-in-law is the spouse of a person within the sixth degree of relationship to the judge's spouse, (see Matter of Schmidt, 31 AD2d 214). Additionally, that judge should request that any further tickets issued by the spouse's brother-in-law should be returnable before another judge.