Opinion 09-16

January 29, 2009

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.”

NOTE: With respect to item 3 (matters involving the son and/or daughter-in-law of a town board member), please see Opinion 12-72, which distinguishes between witnesses who are spouses of town board members and witnesses who are other adult relatives of a town board member and do not reside with him/her.

Digest:       A part-time town justice must disqualify him/herself, subject to remittal unless a party is self represented: 1) in any matters where a Deputy Sheriff, who also serves on the Town Board, appears as a prosecutor or a witness; 2) in any matters involving the spouse of a Town Board member who appears in his/her capacity as a Deputy Sheriff; or 3) in any matters involving the son and/or daughter-in-law of a Town Board member.

Rules:        22 NYCRR 100.3(E)(1); 100.3(F); Joint Opinion 07-114/120; Opinions 07-128; 90-175 (Vol. VI); 94-96 (Vol. XII).

Opinion

         A Town Justice inquires about the propriety of the judge hearing cases:

         1) involving accusatory instruments signed by a Deputy Sheriff who also serves on the Town Board;

         2) involving accusatory instruments signed by a Deputy Sheriff who is the spouse of a Town Board member who is also a deputy sheriff;

         3) in which the son and daughter-in-law of a Town Board member is charged with an offense.

         This Committee has previously determined that a part-time judge must disqualify him/herself, subject to remittal, in matters where a Deputy Sheriff, who also serves on the Town Board, appears before the judge as a prosecutor or a witness (see Opinion 90-175 [Vol. VI]). The Committee has also advised that a judge must disqualify him/herself, subject to remittal, in any cases involving the spouse of a Town Board member (see Opinion 94-96 [Vol. XII]). Therefore, the judge must disqualify him/herself in any matters involving the spouse of a Town Board member appearing before the judge in his/her capacity as a Deputy Sheriff.

         Consistent with the foregoing, the Committee now concludes further that the judge’s impartiality might reasonably be questioned when the son and the daughter-in-law of a Town Board member appear as parties or witnesses in a case before the judge. Therefore, the judge must disqualify him/herself, subject to remittal, in any such matter (see 22 NYCRR 100.3[E][1] and 100.3[F]).

         These remittals are unavailable in any case where a party is self-represented (see Joint Opinion 07-114/120; Opinion 07-128).