Opinion 13-108


September 12, 2013

 

Digest:         A judge whose spouse is a supervisor in the county probation department may preside over criminal matters in which the department participates, except that the judge is disqualified, subject to remittal, when probation officers under the direct supervision of the judge’s spouse participate in a matter.

 

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100.3(F); Opinions 13-65; 12-72; 11-64; 11-47; 09-242; 09-138; 08-50; 98-138 (Vol. XVII); 94-52 (Vol. XII); 92-66 (Vol. IX); People v Moreno, 70 NY2d 403 (1987).


Opinion:


         A part-time judge states that his/her spouse works for the county probation department and supervises some of the probation officers who submit reports to and appear in the judge’s court. The judge asks whether disclosure and/or disqualification is required when a case involves (a) pre-sentence reports prepared by county probation officers or (b) violation of probation cases submitted and prosecuted by county probation officers. The judge further asks whether the same obligation applies to all county probation officers, as opposed to those supervised by the judge’s spouse.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]); must not permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]); and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). For example, disqualification is required if the judge knows that a person related to the judge or the judge’s spouse within the fourth degree of relationship by affinity or consanguinity is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).1


         The Committee has previously advised that the Rules Governing Judicial Conduct do not require a judge’s disqualification where the judge’s fifth-degree relative is “involved in a case in the capacity of a probation officer unless the relative is likely to be a material witness in the proceeding before the judge, as would be the case in a probation violation hearing” (Opinion 92-66 [Vol. IX]).2 The Committee noted that disqualification is nonetheless required if the judge harbors doubts about his/her “ability to be impartial or to objectively decide disputed evidentiary matters that may involve reference to the probation officer’s work” (id.).


         In the present inquiry, of course, the relative who works for the probation department is the judge’s spouse, rather than a more distant relative (cf. Opinion 12-72 [noting that spouses “ordinarily reside in the same household and maintain both an emotional and financial relationship”]).3 Moreover, the spouse’s supervisory position here means the judge’s spouse may be deemed “personally involved” in all matters he/she directly supervises. Accordingly, the Committee believes that Opinion 92-66 (Vol. IX) does not govern here, as it does not consider the danger of a public perception of impropriety if the judge presides over a matter in which the judge’s spouse is personally involved -– even though, as a supervisor, the judge’s spouse is not likely to be a material witness in any proceeding before the judge.


         Although the Committee has not previously addressed the ethics obligations of a judge whose first degree relative by affinity or consanguinity supervises probation officers who appear in the judge’s court, it has addressed similarly close non-attorney relatives with supervisory responsibilities in other government agencies. For example (Opinion 13-65):

 

The Committee has advised that a judge whose first degree relative by affinity or consanguinity supervises law enforcement officers who appear in the judge’s court, must disqualify him/herself in all cases in which the relative is involved or appears, and in any proceeding where an officer who is subject to the relative’s supervision appears (see Opinions 09-242; 08-50; 94-52 [Vol. XII]). Therefore, you need not disqualify yourself from all cases involving the sheriff’s office that employs your spouse. However, you must disqualify yourself from all cases or proceedings in which your spouse is involved or appears, and in any cases or proceedings where officers who are subject to your spouse’s supervision appear.


(see also e.g. Opinion 11-47 [discussing prior opinions]). In each instance, the disqualification is subject to remittal (see id.).


         Similarly, the Committee has advised that a judge who presides in Family Court should disqualify him/herself in cases where caseworkers of the local Department of Family Services who are supervised by the judge’s spouse had any involvement (see Opinion 98-138 [Vol. XVII]). The Committee noted the inquiring judge’s spouse supervised some, but not all, of the caseworkers who may be appearing in the judge’s court. The judge was required to disqualify him/herself in situations where a caseworker under the supervision of the judge’s spouse signed petitions, was expected to testify or was otherwise involved in a matter. The Committee also advised that such disqualification is subject to remittal (see id.).


         The Committee concludes that the same principles apply here. Therefore, the inquiring judge need not disqualify him/herself from all cases involving the probation office that employs the judge’s spouse (see Opinions 13-65; 98-138 [Vol. XVII]). However, the judge must disqualify him/herself, subject to remittal where available, from all cases or proceedings in which the judge’s spouse is involved or appears, and in any cases or proceedings where probation officers who are subject to the judge’s spouse’s supervision appear (see id.).


         In the Committee’s view, a probation officer under the judge’s spouse’s supervision may “appear” before the judge in a criminal matter in at least two ways. First, after a defendant has been found guilty, the probation officer may conduct a pre-sentence investigation of the defendant, and prepare and execute a pre-sentence report for the judge’s consideration. The judge must evaluate the report and may, in sentencing the defendant, need to decide disputed evidentiary matters that involve reference to the probation officer’s work. Second, after a defendant has been given a sentence that includes probation, if the probation officer believes that a violation has occurred, he/she may execute and file a petition for a violation of probation. In this case, the probation officer is likely to appear before the judge as a material witness.


         Thus, to answer the specific questions presented, in all cases where probation officers under the direct supervision of the inquiring judge’s spouse prepare pre-sentence reports4 or submit and prosecute violation of probation cases, the judge must disqualify him/herself, subject to remittal of disqualification where ethically permitted.5 The Committee emphasizes that remittal is unavailable if the matter is before the judge ex parte (e.g., arraignments, applications for search warrants) or if any party is proceeding without counsel (see Opinion 08-50).


         In cases involving other probation officers from the same department who are not supervised by the judge’s spouse, the judge may preside, provided that the judge believes he/she can remain fair and impartial (see generally People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 11-64).


         

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     1 There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of those enumerated circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).


     2 At the time that Opinion 92-66 was decided, disqualification was required when “a person within the sixth degree of relationship” to the judge or the judge’s spouse, or the spouse of such a person, “is to the judge’s knowledge likely to be a material witness in the proceeding” (Opinion 92-66 [Vol. IX], citing former Section 100.3[c][1][iv]). This provision is no longer in effect; the threshold is now the fourth degree of relationship (see 22 NYCRR 100.3[E][1][e]).


     3 Fifth-degree relatives include a first cousin once removed, as well as a great-granduncle, great-grandaunt, great-grandniece, or great-grandnephew.


     4 Because the Committee here requires disqualification in all cases where probation officers under the direct supervision of the inquiring judge’s spouse prepare pre-sentence reports, Opinion 92-66 (Vol. IX) is overruled to the extent that it suggests that disqualification is never required merely because a relative who is a probation officer “has conducted the pre-sentence investigation [or] signed the pre-sentence report” (Opinion 92-66 [Vol. IX]).


     5 Remittal involves three steps: “First, the judge must fully disclose the basis for disqualification on the record. ... Second, ... without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138, relying on 22 NYCRR 100.3[F])).