Opinion 98-152

December 3, 1998

NOTE: Please note that Opinion 98-152 relies on 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 appear to affect the outcome of Opinion 98-152, to the extent that grandnephews/grandnieces appear to be within the fourth degree of relationship.

Digest:         Disqualification is required in any proceeding in which the judge's grandnephew, who is a police officer, had any involvement.

Rule:           22 NYCRR 100.3(E)(1); 100.3(E)(1)(d); Opinion 92-71 (Vol. IX).

Opinion:

         A village justice informs the Committee that the judge's nephew's son is becoming a member of the village police department. The judge asks whether "it would be a conflict of interest for me to sit in judgment of any cases he may have presented in my court."

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . ." 22 NYCRR 100.3(E)(1). Subparagraph (d) of section 100.3(E)(1) specifies that one such circumstance in which the judge's impartiality might reasonably be questioned is where a person within the sixth degree of relationship to the judge "(I) is a party to the proceeding; (ii) is an officer, director or trustee of a party; (iii) has an interest that could be substantially affected by the proceeding; (iv) is likely to be a material witness in the proceeding." 22 NYCRR 100.3(E)(1)(d).

         Here, the relationship is within the sixth degree of consanguinity, and by the terms of the inquiry, the grandnephew is, at the very least, likely to be a material witness in proceedings before the judge. Disqualification is therefore required. As stated in Opinion 92-71 (Vol. IX), where the judge's nephew was a police officer, "the judge must disqualify himself or herself in every case where the police officer nephew is involved either by swearing to or issuing the accusatory instrument or by appearing before the judge as a material witness." The same requirement of disqualification applies in this instance. Thus, there should be recusal in any proceeding in which the grandnephew is involved as a police officer.