January 20, 2011
This responds to your inquiry (10-184) asking whether you must disqualify yourself from cases involving the County Sheriff’s Department because your niece is married to a deputy sheriff from that department and because you were a part-time employee of the same department for the last five years.
A judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned, including where a person who is a material witness in a case is related to the judge within the fourth degree of relationship or is married to someone so related to the judge (see, 22 NYCRR 100.3[E]). However, disqualification for this reason is subject to remittal (see, 22 NYCRR 100.3[F]). Therefore, as your relative is related to you within the 4th degree of relationship, you are disqualified, subject to remittal, when your relative’s spouse appears in your court (see, Opinion 92-71 [Vol. IX]).
With respect to your prior part-time employment with the Sheriff’s Department, the Committee previously has advised that a town justice-elect who, when he/she takes office, will have been retired for more than two years after thirty-one years of employment by the police department for the same town where he/she will preside, may adjudicate matters involving that police department as long as the judge had no personal involvement in the matter before him/her and the judge can be impartial (see, Opinion 09-222). Similarly, you may adjudicate cases involving personnel from the same sheriff’s department where you were employed on a part-time basis as long as you had no involvement in the matter currently pending in your court and you believe that you can be impartial.
I have enclosed copies of Opinions 09-222 and 92-71 (Vol. IX) for your convenience.