Opinion 21-101

June 17, 2021

Digest:         (1) A town justice whose spouse is the mayor of a village within the town
(a) is disqualified, without the possibility of remittal, in matters where the judge’s spouse is expected to testify or is a named party, and
(b) is disqualified, subject to remittal, in matters where the village is a named party, but
(c) need not otherwise recuse from cases where the judge’s spouse has no personal involvement, merely because village employees will appear.
(2) Where the judge’s spouse, as village mayor, serves ex officio on a body of commissioners for the village police department, but is not the head of the department and has no day-to-day administrative, supervisory or law enforcement responsibilities, the judge need not recuse from cases involving the village police department due solely to the judge’s spouse’s formal status as a police commissioner.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(i)-(ii); 100.3(E)(1)(e); 100.3(E)(1)(e)(i); 100.3(F); Opinions 20-22; 21-15; 19-92; 19-89; 18-12; 17-150; 17-118; 12-25; 10-146; 05-103.

Opinion:

         A town judge, who hears cases in both the town and a village within the town, is married to the village mayor. Under the village charter, the mayor has the power to hire, fire, discipline and terminate all other village employees, except for the police chief and the corporation counsel. Further, the mayor is a member of the village board of trustees, and each trustee also serves ex officio as a “police commissioner” of the village police department. However, we understand that the commissioners are not in the ordinary supervisory chain-of-command and have no day-to-day administrative, supervisory, or law enforcement responsibilities in the village police department. Instead, the department is overseen by the police chief, who serves as the executive officer of the department.

         On these facts, the judge asks if it is permissible to preside in cases involving the village and its police department, corporation counsel, deputy counsel, code enforcement officers and parking enforcement officers. It appears that the vast majority of traffic tickets, parking tickets, and building code violations heard in the town court are issued, filed, or prosecuted by village employees. In particular, we understand that “almost all” traffic tickets are written by the village police, “almost all” parking tickets are filed by village parking enforcement officers, all building code violations are filed by village code enforcement officers and/or village police officers and prosecuted by the village’s corporation counsel.¹ The village police department may also appear in the town court on other matters, as its personnel have the authority to arrest on various Penal Law violations.

         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]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, disqualification is required where a sixth-degree relative by blood or marriage is either “a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]) or “an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]); or where a fourth-degree relative is “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Generally, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25). Remittal is not available when a sixth-degree relative is a party to the proceeding or when a second-degree relative “personally appears in the courtroom [as a material witness] during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][d][i]; 100.3[E][1][e][i]; 100.3[F]).

         Where a judge’s spouse, child or parent is the head of a law enforcement agency, they are deemed to be personally involved in all matters of that agency, thus warranting disqualification (see e.g. Opinion 19-89). In Opinion 19-89, we concluded “[i]t would be difficult, if not impossible, for a defendant facing charges involving the law enforcement agency headed by the judge’s spouse, parent or child to believe that the judge can be fair and impartial in such matters and will hold the prosecution to its Constitutional burden of proof” (id.). In light of these concerns, we said that if a town justice’s first-degree relative became the town police chief (as opposed to the captain of a division within the department), the disqualification could not be remitted (see id.). In Opinion 21-15, we adhered to this view, again advising that a judge whose first-degree relative heads a law enforcement agency must disqualify from all matters involving the agency, without the possibility of remittal. Indeed, we said this included “matters where the judge concludes the agency or its personnel have been or will likely be involved” (id.).

         Significantly, the facts here are not congruent with those in Opinions 19-89 and 21-15. Regardless of title, the judge’s spouse is not “the” head of a law enforcement agency, in the manner of a police chief, police superintendent, or chief constable. Instead, the judge’s spouse, along with the other village trustees, serves ex officio on a body of “police commissioners.” These “commissioners” have no day-to-day responsibilities in the police force nor can they reasonably be seen as personally involved in or responsible for all matters of the agency. We note that we expressly qualified our holding in Opinion 19-89 by stating (emphasis added) that our “reasoning is limited to law enforcement agencies (e.g. police departments or a sheriff’s office), in which the judge’s first-degree relative serves as the head of the agency (rather than a lesser supervisory role).” Again, the judge’s spouse here is merely part of a body of “commissioners” which possesses a far more distant and limited oversight role than those of a police chief who sets department policies, has day-to-day administrative and law enforcement responsibilities, and is likely to be seen by the public as ultimately answerable for the actions of the department. As such, we conclude the judge need not disqualify in matters involving the police department, merely due to the judge’s spouse’s formal status as a police commissioner.

         Regarding the spouse’s role as the village mayor who oversees village employees and possesses direct supervisory authority over them, we note first of all that the judge is disqualified, without the possibility of remittal, in any matter where the judge’s spouse is likely to appear personally in the courtroom as a witness (see 22 NYCRR 100.3[E][1][e][i]; Opinion 17-150) or is a named party (see 22 NYCRR 100.3[E][1][d][i]). Moreover, we have said a judge whose first- or second- degree relative is a town supervisor or village mayor is disqualified in any proceeding in which the town or village is a named party (see Opinions 17-118; 10-146; 05-103; 22 NYCRR 100.3[E][1][d][ii]), although disqualification on this ground is subject to remittal if the judge can be fair and impartial (see Opinions 20-22; 19-92).

         Conversely, where the village is not a named party, but instead only an interested party, we have said that disqualification is not required, provided the judge’s spouse is not personally involved in the matter (see Opinions 18-12; 19-92). Thus, if village employees are to testify, disqualification is not ordinarily required as long as the judge’s spouse is not personally involved. Likewise, where the village’s corporation counsel appears pursuant to authority delegated by the District Attorney, the judge may preside so long as the village is not a named party to the action and the judge’s spouse is not personally involved in the matter.

         In sum, this judge is not disqualified in matters involving the village police merely because the judge’s spouse, as village mayor, is also on a body of “police commissioners” along with other village trustees. We note this result is expressly premised on our understanding that the “commissioners” are not in the ordinary supervisory chain-of-command and have no day-to-day law enforcement responsibilities. The judge must disqualify in any matter where the village is a named party or where the judge’s spouse is likely to serve as a material witness, and remittal is unavailable in the latter scenario. However, the inquiring judge need not disqualify if the village is merely an interested party. Thus, where the village and the judge’s spouse are not named parties and the judge’s spouse is unlikely to be called as a witness, the inquiring judge need not disqualify merely because village employees and/or corporation counsel are involved in the matter.

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¹ The judge advises that building code violations and other alleged violations of local ordinances are prosecuted in the name of the People of the State of New York, apparently pursuant to authority delegated by the District Attorney.