Opinion 05-114

October 27, 2005

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 town judge should not preside over code enforcement proceedings instituted by the judge’s brother-in-law, but such proceedings may be brought and tried before the co-judge of the town court.

Rules:          22 NYCRR 100.3(E)(1)(d)(iv); 100.3(F); Opinions 94-55 (Vol. XIII), 99-170 (Vol. XVIII).

Opinion:

         A town judge states that his/her spouse’s brother is the code enforcement officer for a village, whose cases are heard in the town court. The District Attorney has authorized the code enforcement officer to “represent the district attorney’s office in code enforcement cases, however, the village attorney is generally . . . reserved for trials.” The judge asks whether the “brother-in-law can represent the Village . . . and prosecute code enforcement violations” in the town court.

         In our view, the issue is not whether the brother-in-law can appear and represent the village. Rather, the issue is who can preside over such proceedings.

         In Opinion 94-55 (Vol. XII) the Committee stated that a town justice is disqualified from presiding over proceedings initiated by a conservation officer who is married to a sister of the judge’s spouse. The degree of the relationship provided the occasion for disqualification. As currently set forth in section 100.3(E)(1)(d)(iv) of the Rules Governing Judicial Conduct, a judge is required to disqualify himself or herself where “the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person . . . is likely to be a material witness in the proceeding.” 22 NYCRR 100.3(E)(1)(d)(iv).

         That is, of course, precisely the situation described in the present inquiry. Accordingly, the inquiring judge is disqualified from hearing such cases. And, although the disqualification may arguably be subject to remittal pursuant to 22 NYCRR 100.3(F), it seems dubious that the judge would be “willing to participate” (22 NYCRR 100.3[F]) given the fact that the brother-in-law is both a material witness and prosecutor.

         However, this does not mean that such cases may not be heard in the town court. As advised in Opinion 94-55 (Vol. XII), the “judge should request that any future tickets issued by the spouse’s brother-in-law should be returnable before another judge.” Here, there is another town judge. Accordingly, all such proceedings should be made returnable before, and presided over by the inquirer’s co-judge. See, e.g. Opinion 99-170 (Vol. XVIII).