Opinion 10-151

October 28, 2010

Digest:         A judge is not disqualified in a tax certiorari case merely because he/she resides in the town or school district where the tax refund is sought.

Rules:          22 NYCRR 100.0(D); 100.0(D)(5); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(C); Joint Opinion 88-17(b)/88-34 (Vol. II).

Opinion:

         A judge asks whether he/she must disqualify him/herself in a pending tax certiorari proceeding. The judge disclosed that he/she resides in the defendant school district; and, thereafter, counsel asked the judge to transfer the case to another court because the school district in which the judge resides “will be liable to my client for tax refunds if the tax assessment is reduced by settlement or trial.” The judge acknowledges this fact, but notes that “the possible financial implication on my school tax bill is so [de minimis] as to have no direct impact.”

         A judge must always avoid impropriety and the appearance of impropriety (see NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge “has an economic interest in the subject matter in question” (22 NYCRR 100.3[E][1][c]). “Economic interest,” as relevant here, is defined as “ownership of a more than de minimis legal or equitable interest” (22 NYCRR 100.0[D]). In turn, the term “de minimis” is defined as “an insignificant interest that could not raise reasonable questions as to a judge's impartiality” (22 NYCRR 100.0[D][5]).

         That the judge is a taxpayer in the same district as the party seeking a tax refund, without more, does not cause the judge’s impartiality to be reasonably questioned. Indeed, the Committee has previously advised that a town judge may preside over matters in which the town is a party, even though the judge “is a resident taxpayer of the town and thereby interested in the outcome of litigation affecting the town” (Opinion 88-17[b]/88-34 [Vol. II]). Where, as here, the decision to award a tax refund would have a de minimis effect on the judge as a taxpayer, the judge simply has no disqualifying “economic interest” in the matter as the Rules contemplate (see 22 NYCRR 100.0[D]; 100.0[D][5]; 100.3[E][1][c]).

         Thus, if the judge can be impartial, he/she is not disqualified.