April 24, 2014
Digest: An appellate judge whose first-degree relative is a law enforcement officer with supervisory responsibilities within the jurisdiction of the judge’s court may preside over cases in which the law enforcement agency appears, provided that he/she can be fair and impartial, and the judge need not investigate whether any officer involved in an arrest was the relative’s subordinate. If the judge becomes aware that an officer involved in the case reports to the judge’s relative, the judge should exercise his/her discretion in determining whether disqualification is required in the specific case before him/her.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(B)(7); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-64; 09-111(A); People v Moreno, 70 NY2d 403 (1987).
The inquiring appellate judge states that his/her first-degree relative1 is a law enforcement officer with supervisory responsibilities within the jurisdiction of the judge’s court. The judge’s relative does not perform arrests, but supervises other officers who do so. The judge asks whether he/she must ask his/her relative, in all criminal cases involving his/her relative’s employer, whether any officer involved in an arrest was the relative’s subordinate. The judge further asks about his/her obligations when he/she learns that the relative’s subordinate is involved in the case.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must dispose of all judicial matters promptly, efficiently, and fairly (see 22 NYCRR 100.3[B]), must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).2 For example, a judge is disqualified, subject to remittal, if the judge knows that a relative within the fourth degree of relationship is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][e]) or that a sixth-degree relative has an interest that “could be substantially affected by the proceeding” (22 NYCRR 100.3[E][d][iii]). However, the Committee has previously recognized that “the procedures with respect to disclosure, insulation and disqualification” are different for appellate court judges than for trial court judges (Opinion 09-111[A]).
Here, of course, the inquiring judge has not asked about presiding over appeals from matters in which his/her first-degree relative was a material witness at trial (cf. 22 NYCRR 100.3[E][e]). At most, the judge’s relative may be the direct supervisor of a trial witness. Indeed, the Committee anticipates that the identity of the arresting officer’s supervisor may often be buried in the appellate record and largely irrelevant to the issues on appeal. Where, as here, the judge’s court hears a large number of appeals, it is unlikely that the inquiring judge would ordinarily become aware of his/her child’s possible indirect involvement as a supervisor of the arresting officer in a particular case. The Committee notes that requiring the inquiring judge to scrutinize the appellate record for this marginally relevant fact could make it difficult for him/her to “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B]).
Moreover, because this judge presides in an appellate court, he/she will not hear live testimony. It appears unlikely the judge will be called upon to make credibility determinations concerning any law enforcement officers, whether they report to the judge’s first-degree relative or to another person.
Under these circumstances, the Committee believes an appellate judge’s impartiality cannot be reasonably questioned merely because his/her relative is an arresting officer’s supervisor. Thus, even if the judge is aware his/her relative’s law enforcement agency is involved in a matter, the judge need not ask his/her relative whether any officer involved in an arrest was the relative’s subordinate or otherwise investigate possible assignments and supervisory relationships within the agency. If the judge becomes aware an officer involved in the case reports to the judge’s relative, the judge should exercise his/her discretion in determining whether disqualification is required in the specific case before him/her. The judge may consider, for example, what the appellate record reveals about the extent of the judge’s relative’s personal involvement in the case and how it relates to the legal issues on appeal.
If the judge believes he/she can be fair and impartial, the judge may preside.
1 A relative within the first degree of relationship by blood or marriage includes a child, step-child, parent, or step-parent (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]).
2 Where, as here, the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14), the remaining issue is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). 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).