Opinion 07-108

September 6, 2007

Digest:         A part-time judge, who operates a business and owns income-producing real property located within the geographic jurisdiction of the judge’s court, should exercise recusal as soon as he/she learns that a party has filed a case in the court that involves the judge’s business or income-producing real property.

Rules:          22 NYCRR 100.3(B)(6); 100.3(E)(1)(c); Opinions 93-05 (Vol. X); 90-103 (Vol. VI); 90-11 (Vol. V); 89-71 (Vol. III).

Opinion:

         A part-time judge, who operates a business and owns income producing real property, located within the geographic jurisdiction of the court in which the judge presides, asks about the proper procedures to follow with respect to disclosure and disqualification when he/she is a named party in a proceeding in the court involving such business or realty.

         The judge poses the following scenario for the Committee’s consideration:

I am the respondent in a small claims case within my jurisdiction. Am I required to announce my recusal at the time I am served with the Notice of Small Claim? Or should the case be docketed with the acting judge of the jurisdiction and the announcement made at the time of the hearing?

         Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/ herself when, in any proceeding, the judge’s impartiality might reasonably be questioned, including when the judge has an economic interest in the subject matter in controversy. 22 NYCRR 100.3(E)(1)(c). A judge is not precluded, however, from commencing an action or proceeding in any court of competent jurisdiction, including the court in which the judge presides, and participating in any such action or proceeding as a litigant only. Opinions 93-05 (Vol. X); 90-11 (Vol. V). Therefore, for both ethical and administrative reasons, the inquiring judge should recuse as soon as he/she learns of the case. If, initially, the case is assigned to the inquirer's co-judge, there is no need for the inquirer’s recusal.

         Here, therefore, the inquiring judge should recuse as soon as he/she learns a party has filed a case in the court involving his/her business or real property. In that regard, it is enough for the judge to ensure that the case is assigned to another judge of the court.

         The judge also asks what action, if any, his/her co-judge must take when the inquiring judge or another party commences a proceeding in the court involving the inquiring judge’s business or real property. This Committee declines to answer questions concerning the conduct of any judge other than that of the inquiring judge. Opinions 90-103 (Vol. VI); 90-11 (Vol. V); 89-71 (Vol. III). The Committee will, of course, address any question the other judge might pose.

         Finally, the inquiring judge asks if it is proper for him/her to contact the acting judge to recommend the latter exercise recusal from a case involving the inquiring judge’s business or real property. Pursuant to the Rules Governing Judicial Conduct, a judge shall not initiate, permit, or consider ex parte communications. 22 NYCRR 100.3(B)(6). The inquiring judge, therefore, cannot suggest any course of action to another judge who is presiding over any case that involves the inquiring judge’s business or real property.

         We decline to respond to the question about the proper procedure when both judges recuse. Because this is a legal, not an ethics question, the judge should contact the City, Town and Village Courts Resource Center for assistance.