Opinion: 98-138
December 3, 1998
Digest:    A full-time judge who is serving as an acting judge of the Family Court should disqualify him/herself in those cases in which caseworkers of the local Department of Family Services who are supervised by the judge's spouse had any involvement, but such disqualification is subject to remittal.

Rule:    22 NYCRR 100.3(E); 100.3(F).
            Opinions 88-57 (Vol II); 88-101/102
            (Vol II); 94-52 (Vol. XII); 98-29.


            The present inquiry is submitted by a full-time judge who has been scheduled to serve as an Acting Family Court Judge. The judge's spouse is employed by the local Department of Family Services in a supervisory capacity with respect to some, but not all of its caseworkers. Among the judge's responsibilities as an Acting Family Court Judge is the review of various petitions filed by caseworkers employed by the Department of Family Services.

            In the instant circumstances, the spouse supervises some but not all of the caseworkers who may be appearing in the judge's court. In that regard, the Department of Family Services has implemented a procedure to avoid, whenever possible, commencing cases before the judge which involve caseworkers supervised by the judge's spouse.

            Under the circumstances, the Committee concludes that the judge should disqualify him/herself in any matter in which a caseworker under the supervision of the Judge's spouse has signed the petition(s), is expected to testify or is otherwise involved in the matter. Opinions 88-57 (Vol. II); 88-101/102 (Vol. II); 94-52 (Vol. XII); 98-29. The judge may then continue to preside only if, after disclosure, the parties and their lawyers agree to a remittal of disqualification in accordance with 22 NYCRR 100.3(F). That is, the circumstances are such that disqualification is called for since, in our view, the judge's impartiality might reasonably be questioned. But that recusal is subject to remittal.

            The Committee also recommends that the judge notify the appropriate District Administrative Judge or Supervising Judge in the event of an excessive number of disqualifications so that this potentially disruptive transfer might be avoided.