Opinion 19-51

 

May 2, 2019

 

Digest:         A judge is disqualified from Vehicle and Traffic Law matters in which the judge’s first-degree relative is the issuing police officer of a traffic infraction, and remittal is unavailable.

 

Rules:          22 NYCRR 100.0©; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(I); 100.3(F); Opinions 18-30; 17-150; 16-175; 13-65; 11-47; 10-184; 02-110; 98-152; 97-59; 94-52; 93-104; 90-151.

 

Opinion:

 

         A town justice asks if he/she may preside over Vehicle and Traffic Law matters in which his/her first-degree relative1 is the issuing police officer.

 

         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 disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including where the judge’s spouse or a person known by the judge to be within the fourth-degree of relationship to the judge or the spouse, by blood or marriage, is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

 

         We have said a judge may not preside over any matter in which a relative within the fourth degree is a law enforcement officer who has actually participated, is personally involved, or appears in the case (see Opinions 10-184 [judge’s niece’s spouse is deputy sheriff]; 98-152 [judge’s grandnephew is police officer in same village]; 93-104 [judge’s son is officer with county sheriff’s department]; 90-151 [judge’s son is police officer]; see also Opinions 13-65 [judge’s spouse is Sergeant with county sheriff’s office]; 11-47 [judge’s spouse is law enforcement officer]; 94-52 [judge’s spouse is police lieutenant]).

 

         That the matter here involves a traffic infraction rather than a crime does not change the result, since the rule mandates disqualification when such relative is likely to be a material witness in any “proceeding” (cf. Opinion 97-59 [no exception for arraignment in case where judge’s son is arresting officer]; 02-110 [judge may not preside over dog licensing cases where judge’s daughter-in-law, as dog control officer, would be responsible for issuing tickets for unlicensed dogs]).

 

Inasmuch as the officer who issued the ticket is likely to be a witness in a proceeding involving a traffic infraction, the inquiring judge must recuse when the judge knows that the relative has issued the ticket. The judge need not, however, separately scrutinize all pleadings to determine whether his/her relative is the issuing officer but must disqualify if the relative’s role is actually known or readily available, such as when the officer’s name appears on the ticket (cf. Opinion 16-175 [issuing officer is client of judge]).

 

         Since the witness here is a first-degree relative, remittal is unavailable (see Opinion 18-30; cf. Opinion 17-150; see also 22 NYCRR 100.3[E][1][e][I]; 100.3[F]).



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1 A first-degree relative includes the judge’s child, step-child, parent, or step-parent, or the spouse of such a person (see generally 22 NYCRR 100.0[C]).