January 29, 2015
Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”
Digest: A town or village justice whose first-degree relative is a social worker without supervisory responsibilities in the local probation department’s domestic violence division (1) is disqualified, subject to remittal where available, from all cases in which his/her relative is personally involved, but (2) need not disclose the familial relationship in other matters involving the probation department and/or allegations of domestic violence, provided that his/her relative is not personally involved in the matter.
Rules: Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 13-64; 12-163; 11-131; 09-242; 09-138; 07-216; 93-104 (Vol. XI).
The inquiring part-time local justice, who presides over certain criminal matters involving domestic violence, states that his/her first-degree relative1 has begun working for the domestic violence division of the local county probation department as a social worker. There is no indication in the inquiry that the judge’s relative serves in any supervisory capacity. The judge’s relative has informed the judge that he/she “will not be involved in any matter that is or may be pending before” any judge who presides in the inquiring judge’s court. The judge asks about his/her disclosure or disqualification obligations in matters involving the probation department and/or in matters involving domestic violence allegations.2
A judge must always avoid even the appearance of impropriety (see 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]) and must not permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge also must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in specific enumerated circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law §14, including when the judge knows that a relative within the fourth degree of relationship by blood or marriage is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][e]). However, in appropriate circumstances, the judge may “disclose on the record the basis of the judge’s disqualification” and permit the parties and counsel to consider remittal of disqualification (22 NYCRR 100.3[F]).
Clearly, a judge must disqualify him/herself when a first degree relative appears in the judge’s court as a lawyer or party, has an interest that could be substantially affected by the proceeding, or is likely to be a material witness in a proceeding (see generally 22 NYCRR 100.3[E][d]-[e]). Where, as here, the judge’s first-degree relative is employed in the public sector in a non-supervisory capacity, the judge may generally preside over other cases in which the public sector employer appears, without the need for disclosure or disqualification, provided the judge’s relative has no personal involvement in the matter (see Opinions 11-131 [where a judge’s relative is an attorney for a large public law office such as a District Attorney’s, the judge need not disqualify him/herself nor disclose that his/her relative is employed as an attorney with the same office when other attorneys from that office appear in the judge’s court, so long as the judge’s relative had no involvement in the matter]; 93-104 [Vol. XI] [an Acting County Court judge may preside in criminal cases investigated by the county sheriff’s department in which the judge’s child, an officer of that department, did not personally participate, or any criminal case of any other police agency where the judge’s child did not personally participate]; cf. Opinion 12-163 [support magistrate whose spouse is employed by the local Department of Social Services in a high level, purely administrative capacity may continue to preside over matters in which the Department of Social Services appears, where the Commissioner has provided written assurance that the support magistrate’s spouse will be completely insulated from Family Court matters]).3
Thus, the inquiring justice need not disclose his/her first-degree relative’s non-supervisory employment with the probation department’s domestic violence division in all cases where the department appears or in all cases involving allegations of domestic violence, provided the judge’s relative is not personally involved in the matter (see Opinions 11-131; 93-104 [Vol. XI]).
However, the inquiring justice must disqualify him/herself in all matters where the relative is personally involved (see Opinion 07-216; 22 NYCRR 100.3[E][e]). Disqualification on this ground is subject to remittal, provided no party is appears without counsel and the judge is willing and able to fully disclose the basis for disqualification on the record (see Opinion 13-64; 22 NYCRR 100.3[F]). Where permitted, remittal is a three-step process: 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 the judge may preside. Third, the judge must independently conclude he/she can be impartial and be willing to preside 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 in the record of the proceeding (see Opinion 09-138; 22 NYCRR 100.3[F]).
1 A relative within the first degree of relationship by blood or marriage includes a child or parent of the judge or the judge’s spouse (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]).
2 The judge notes that he/she hears “cases in which a violation of probation is alleged” as well as cases in which the probation department may become involved at a later stage, such as “when, in imposing a criminal sentence, the Probation Department has submitted a [pre-sentence investigation] report containing sentence recommendations...”
3 If the justice’s relative assumes supervisory responsibilities, however, there may be a need for disqualification, subject to remittal where available, in any proceeding where an employee under the child’s supervision appears in the justice’s court (see Opinion 09-242).