Opinion 12-72

December 13, 2012

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).

Digest:         A part-time judge need not disqualify him/herself where the emancipated adult child of a town board member or village trustee, who participates in setting a judge's salary, appears as a witness.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 09-138; 09-107; 09-106; 09-16; 04-100; 94-61 (Vol. XII); 91-63 (Vol. VII); 90-175 (Vol. VI); Joint Opinion 88-17(b)/88-34 (Vol. II).

Opinion:

         A part-time town/village judge asks if he/she may preside when the police officer appearing in the judge's court is the child of a town board member for the municipality where the judge presides. The judge advises that the officer appears in a variety of cases, including Vehicle and Traffic matters and cases involving felony offenses.

         A judge must avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (22 NYCRR 100.2[A]). Also, a judge must disqualify him/herself when the judge's impartiality might reasonably be questioned (22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a part-time judge should disqualify him/herself in matters involving a town board member or village trustee as a private litigant or as counsel for a party if the town board member or village trustee participates in setting the judge's salary (Opinions 09-106; 94-61 [Vol. XII]; 91-63 [Vol. VII]; Joint Opinion 88-17[b]/88-34 [Vol. II]). In the Committee's view, the judge's impartiality might reasonably be questioned under those circumstances. Similarly, the Committee has advised that a part-time judge must disqualify him/herself in matters where a deputy sheriff, who also serves on the town board and participates in setting the judge’s salary, appears before the judge as prosecutor or witness (Opinions 09-16; 90-175 [Vol. VI]). In the Committee's view, a public perception of partiality could be created when a judge is required to evaluate the credibility and conduct of a deputy sheriff who writes many summonses and frequently thereafter testifies in the judge’s court (Opinion 90-175 [Vol. VI]).

         Finally, the Committee has advised that a judge's impartiality might reasonably be questioned, and disqualification is therefore required, when certain close relatives of a town or village board member who participates in setting the judge's salary appear in the judge's court (Opinions 09-107 [town supervisor's sibling appears as defendant in small claims matter]; 09-16 [town board member's spouse appears in his/her capacity as deputy sheriff; town board member's child or child-in-law appears as party or witness]).

         Disqualification in any of these circumstances is subject to remittal, unless a party appears without representation (see 22 NYCRR 100.3[F]; Opinion 04-100).¹

         Under the circumstances presented here, the town board member or village trustee who participates in setting the judge's salary has an adult child who will appear before the inquiring judge only as a witness, and not as a party. The Committee is now of the view that, when a relative of a town board member or village trustee who participates in setting a judge's salary appears before the judge only as a witness, it is appropriate to distinguish between a spouse and other relatives. A board member and his/her spouse ordinarily reside in the same household and maintain both an emotional and financial relationship. Therefore, the judge's impartiality might reasonably be questioned should the board member's spouse appear in the judge's court, even as a witness (see 22 NYCRR 100.3[E][1]; Opinion 09-16), and to that extent the Committee reaffirms Opinion 09-16. By contrast, the public will readily perceive that a board member’s relationship with other relatives who do not reside in the board member’s household is ordinarily more attenuated and does not raise a reasonable question as to the judge’s impartiality. Thus, a part-time judge need not disqualify him/herself where the emancipated adult child of a town board member or village trustee who participates in setting a judge's salary appears as a witness. Therefore, Opinion 09-16 is modified to the extent that it mandates disqualification when the adult child of a board member who participates in setting a judge's salary appears as a witness.² Of course, if the judge doubts his/her ability to be impartial, the judge should disqualify him/herself.

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     ¹ Remittal is a three-step process: “First the judge must fully disclose the basis for disqualification on the record.... Second, ... without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138, relying on 22 NYCRR 100.3[F]).

     ² The Committee notes that disqualification is still required when the board member’s close relative is a party (see Opinions 09-107; 09-16).