Opinion 98-27

March 12, 1998

Please Note: In Opinion 16-67, the Committee characterized this opinion as requiring “disqualifi[cation], subject to remittal, in criminal matters where [the judge’s] spouse had no personal involvement in the case.”  See also Opinions 16-03; 11-47; 09-242.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented.  We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A City Court judge, whose spouse is a city Deputy Chief of Police, may preside over criminal matters where the spouse had no personal involvement in the case, provided the parties are represented by counsel, disclosure is made and both sides consent. In ex-parte matters the judge should recuse.

Rule:            22 NYCRR 100.2; 100.2(B); 100.3(E)(1), Opinions 94-52(Vol. XII), 91-56(Vol.VII), 90-75(Vol. VI).

Opinion:

         A part-time City Court judge, whose spouse is a Deputy Chief of the city's Police Department, inquires whether the judge may continue to preside in criminal matters. At issue are section 100.3(E)(1) of the Rules Governing Judicial Conduct, which states that, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might be reasonably questioned...", and section 100.2(B), which states that "A judge shall not allow family ... relationships to influence the judge's judicial conduct or judgment."

         The Committee has previously addressed similar circumstances in Opinions 90-75(Vol. VI), 91-56(Vol. VII) and 94-52(Vol. XII). The basic guidepost expressed in those opinions is whether there had been direct participation in the matters before the Court. Where there was personal involvement in the matter, the judge is disqualified. Where, however, such involvement is absent but the officer(s) in the case is under the direct command of the spouse, the Committee concluded that the judge should disclose the nature of the relationship and may continue to preside if the judge believes he or she can be impartial.

         As applied to the present inquiry, the information submitted to the Committee indicates that the spouse's duties as Deputy Chief are essentially administrative, and do not involve investigations, prosecutions or supervision of officers in arrests and prosecutions. But the spouse does hold a position at the highest echelon of the Department, issuing press releases and conducting press conferences. Given such high public visibility, the Committee believes it would be prudent for the judge to disclose the relationship on the record in each criminal proceeding and recuse in all City police cases, unless both sides, represented by counsel, consent to the judge presiding. But in ex parte matters (e.g. arraignments, applications for search warrants) where the defendant is not represented, the judge should disqualify himself or herself, since to continue to preside may create an appearance of impropriety. 22 NYCRR 100.2.