Opinion 02-42

April 18, 2002

NOTE: This opinion cites former Section 100.3(E)(1)(d)(iv), which was deleted in 2006.  Former Section 100.3(E)(1)(d)(iv) required disqualification when a relative within the sixth degree is likely to be a material witness in the proceeding.  In 2006, the "material witness" provision was moved to Section 100.3(E)(1)(e), which applies to fourth-degree relatives.  The change does not affect the outcome of this opinion, which involves a relative within the fourth degree.

Digest:         A judge need not exercise recusal in a case involving enforcement of a village ordinance where the judge’s spouse and first cousin were members of the village board when the ordinance was adopted, but should exercise recusal, subject to remittal, if the judge’s first cousin is to testify as a witness.

Rules:          22 NYCRR 100.3(E)(1);100.3(E)(1)(d)(iv); 100.3(F).

Opinion:

         A town justice presides in a town court that exercises jurisdiction over matters that arise in the town and in a village located within the town. The judge will be presiding in a case involving enforcement of a village ordinance and asks several questions concerning recusal. The judge asks whether recusal is required because (1) the judge’s spouse, who is not presently a member of the village board, was a member at the time the ordinance was adopted; (2) the judge’s first cousin, who presently is a member of the village board, also was a member at the time the ordinance was adopted; (3) the judge’s first cousin will testify as a witness for the village.

         The Rules Governing Judicial Conduct require a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1). It is the Committee’s view that, so long as the judge believes that he or she can remain impartial, recusal is not required either because the judge’s spouse is a former board member who was involved in adoption of the ordinance or because the judge’s first cousin currently is a board member and was involved in adoption of the ordinance. These facts alone do not create a reasonable basis for questioning the judge’s impartiality.

         However, because the judge’s first cousin is within the sixth degree of relationship to the judge, the judge must exercise recusal if the judge’s first cousin will testify either as to the ordinance or as to the alleged violation. 22 NYCRR 100.3(E)(1)(d)(iv). Recusal on this basis is, however, subject to remittal, provided that there is adherence to the requirements of section 100.3(F) of the Rules.