Opinion 09-106

July 13, 2009

Hon.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Dear Justice :

         This responds to your inquiry (09-106) asking whether you are disqualified from presiding over a case in which a Village Trustee is the complainant, even though you serve as Village Court Justice without compensation.

         As a general rule, a judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2 [A]). Thus, this Committee has previously advised that, where a Town Councilperson or Village Trustee who sets a judge’s salary appears before that judge as a party or as counsel for a party, the judge should disqualify himself as the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; see also Opinions 07-53; 94-61 and Joint Opinion 88-17(b)/88-34, enclosed for your convenience). However, such disqualification is subject to remittal (see 22 NYCRR 100.3[F]) unless any party is self-represented (see Opinion 04-100, also enclosed).

         Although you receive no salary, the Village Court budget is nevertheless fixed by the Village Trustees, and, therefore, it is the Committee’s view that, in order to avoid the appearance of impropriety, you should disqualify yourself in this matter, subject to remittal.  

                                                Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair

Enclosures    

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."