Opinion 04-66

June 3, 2004

Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.

Please Note: In Opinion 18-139, we said “We note that Opinion 08-59 effectively amended Opinion 04-66 to require disqualification subject to remittal.”

Digest:         A judge, who is a plaintiff in a small claims breach of contract pension action against a municipality, should recuse in all matters in which the municipality is a party during the pendency of the judge’s action if such request is made by the municipality’s attorney after disclosure.

Rule:            22 NYCRR 100.2; 100.3(E)(1).

Opinion:

         The inquiring judge has commenced a small claims action against a municipality, for approximately $3,000 alleging a breach of contract with respect to a pension. The judge has disclosed the existence of this action to the attorney for the

 municipality as well as the attorneys for the municipality’s adversaries in the tort actions against the municipality presently pending before the judge. Although the judge believes that he/she can remain fair and impartial in all matters in which the municipality is a party, the attorney for the municipality has asked the judge to recuse in all matters involving the municipality as a party.

         It does not appear to the Committee that the existence of the law suit in question necessarily gives rise to a reasonable questioning of the judge’s impartiality under section 100.3(E)(1) of the Rules Governing Judicial Conduct, thereby mandating recusal in all actions where the municipality is a party. Nevertheless, the fact remains that the judge and the municipality are adversaries in a pending court proceeding. Thus, to avoid even any appearance of impropriety under section 100.2 of the Rules Governing Judicial Conduct, we deem it advisable that the judge not preside in matters in which the municipality is a party, pending the conclusion of the judge’s action against the municipality and, if requested by the municipality’s attorney exercise recusal.