Opinion 13-65

April 25, 2013

Dear Justice:

         This responds to your inquiry (13-65) asking whether you must disqualify yourself from all cases involving the [County] Sheriff’s Office because your spouse is a Sergeant with the [County] Sheriff’s Office Road Patrol; and whether you must disqualify yourself from certain “dangerous dog” cases and “civil cases involving damage from dogs” as a result of your outside employment with a health department’s rabies prevention and treatment program.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         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.

         You also should refrain from handling any cases involving pleas defendants enter by mail for tickets your spouse, or any officer your spouse supervises, issued (see Opinion 94-33 [Vol. XII]).

         You additionally ask whether you must disqualify yourself from dangerous dog cases or civil cases involving damage from dogs, if they involve a dog that you previously dealt with in connection with a “bite incident” in the course of your employment with a health department’s rabies prevention and treatment program. You advise that you “handle all animal bites” that occur in the county where you preside.

         You must disqualify yourself from any court case involving a dog that has come before you at the health department relating to a “bite incident” (see Opinions 08-56; 92-09 [Vol. IX]).

         I have enclosed Opinions 09-242, 08-56, 08-50, 94-52 (Vol. XII), 94-33 (Vol. XII), and 92-09 (Vol. IX) for your convenience.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.

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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).