Opinion 97-59

May 8, 1997

NOTE: This opinion cites former Section 100.3(E)(1)(d)(iv), which was deleted in 2006.  Former Section 100.3(E)(1)(d)(iv) required disqualification when a relative within the sixth degree is likely to be a material witness in the proceeding.  In 2006, the "material witness" provision was moved to Section 100.3(E)(1)(e), which applies to fourth-degree relatives.  The change does not affect the outcome of this opinion, which involves a relative within the fourth degree.

Digest:         A judge must disqualify himself/herself in any proceeding, including an arraignment, in which the judge's son is the arresting police officer. In the event of remittal of disqualification, the judge may preside, if the judge believes that impartiality can be maintained.

Rules:          22 NYCRR 100.3(E)(1); 100.3(E)(1)(d)(iv); 100.3(F); Opinion 90-151 (Vol. VI).

Opinion:

         A judge asks if it is appropriate to preside over an arraignment in cases where the judge's son is the arresting police officer.

         The Rules Governing Judicial Conduct require that a judge disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). The Rules further state that among instances where the judge's impartiality might reasonably be questioned and therefore requiring disqualification, are circumstances where a person known by the judge to be within the sixth degree of relationship to the judge (or the judge's spouse), is likely to be a material witness in the proceeding. 22 NYCRR 100.3(E)(1)(d)(iv).

         In the instant matter, the arresting police officer is likely to be a material witness in the proceeding and, as the judge's son, is within the first degree of familial relationship. It therefore follows that the judge must disclose the relationship and disqualify himself/herself in any arraignment or other proceeding in which the son is involved. Opinion 90-151 (Vol. VI).

         After such disclosure, there may be a remittal of disqualification in accordance with the procedures set forth in section 100.3(F) of the Rules and the judge may then preside if he/she believes that impartiality can be maintained.