Opinion 13-148

October 24, 2013


Digest:         A full-time judge may serve as Supervising Judge of the criminal trial courts in the same judicial district where the judge’s adult emancipated child is a non-supervising felony prosecutor.


Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); Opinions 12-72; 11-131; 11-124.


         An administrative judge asks whether he/she may permit a full-time judge to serve as supervising judge of the criminal trial courts in the same multi-county judicial district “where the [judge’s] adult emancipated [child] is a non supervising trial Assistant District Attorney at the felony level.”

         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]). Therefore, a judge 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 a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14).

         The question presented is, in essence, whether the proposed supervising judge’s familial relationship with a prosecutor would create an appearance of impropriety, either directly (e.g. by conflicting or interfering with the judge’s ability to perform his/her duties as a supervising judge) or indirectly (e.g. by causing a need for frequent disclosures or disqualification on the part of the judges subject to that judge’s supervision).

         Preliminarily, the Committee notes that, although a judge whose relative within the fourth degree of relationship is an assistant district attorney may not preside in matters in which his/her relative appears (see 22 NYCRR 100.3[E][1][e]), the judge may nonetheless preside in other criminal matters in which the relative has had no involvement (see Opinion 11-131). That is, a judge is not automatically disqualified from presiding in criminal matters merely because a relative is a prosecutor.

         The role of a supervising judge is substantially different from that of a presiding judge because, in the exercise of his/her responsibilities, a supervising judge is removed from the adjudication of individual cases. According to the Unified Court System’s website, supervising judges generally are “responsible for assisting [a]dministrative [j]udges in the on-site management of the trial courts, including court caseloads and personnel and budget administration” (see http://www.nycourts.gov/admin/ directory.shtml [Jan. 9, 2014]). Supervising judges “manage a particular type of court within a county or judicial district” (id.).

         In the Committee’s view, the fact that a supervising judge’s emancipated adult child is a prosecutor in certain felony matters within one county is not likely to create an appearance of impropriety with respect to the judge’s management of the overall criminal court caseloads and personnel of a judicial district or the administration of the criminal courts’ budgets. Indeed, the Committee expects that a supervising judge of the criminal trial courts in a particular judicial district will handle these and other such administrative issues based on the court system’s needs and frequently on a macroscopic level across the entire judicial district. Thus, there appears to be no “direct” conflict or appearance of impropriety under the facts presented based on the proposed supervising judge’s familial relationship with an assistant district attorney (see 22 NYCRR 100.2).

         Moreover, the Committee believes there will be no “indirect” conflict resulting from a need for frequent disclosure or disqualification of other criminal court judges within the judicial district. In Opinion 11-124, certain judges within a judicial district stated that “an attorney who frequently appears before each of us [is] married [to] the [a]dministrative [j]udge for our district” (Opinion 11-124). The inquiring judges were particularly “concerned about a possible appearance of impropriety ‘given the volatile nature of the matters which we must adjudicate’” (id.). However, the Committee advised that (id.):


the marital relationship of the inquiring judges’ district administrative judge is sufficiently remote from the inquiring judges that it does not, in and of itself, create any reasonable appearance of impropriety for them and thus neither disclosure nor disqualification is required. In reaching this conclusion, the Committee is mindful that each judge must search his or her conscience and determine whether recusal is the appropriate course to be followed. Where disqualification is not mandatory, however, it remains a “discretionary decision within the personal conscience of the court” (People v. Moreno, 70 NY2d 403, 405 [1987]).

         Thus, the Committee concluded that a judge may preside in a proceeding in which his/her administrative judge’s spouse appears as an attorney, in the absence of any other disqualifying factor and assuming he/she can be fair and impartial, even over the objection of a party or counsel (see id.). The judge is not required to disclose that the attorney is the administrative judge’s spouse, but has the discretion to do so, without incurring any obligation to disqualify him/herself (see id.).1

         Here, too, the Committee believes that the family relationships of a supervising judge are also “sufficiently remote” from the judges subject to his/her supervision that they “[do] not, in and of [themselves], create any reasonable appearance of impropriety for” the supervised judges (Opinion 11-124).

         Thus, the Committee concludes that, under the facts presented, a full-time judge may serve as supervising judge of the criminal trial courts in the same judicial district where the judge’s adult emancipated child is a non-supervising trial assistant district attorney.


     1 Both Opinion 11-124 and the present inquiry involve the first degree of relationship, whether by consanguinity (parent/child) or affiliation (spouses). Unlike an emancipated adult child, however, spouses “ordinarily reside in the same household and maintain both an emotional and financial relationship” (Opinion 12-72).