Opinion 13-177

December 12, 2013

Digest:         Provided the judge can remain fair and impartial and absent any other factor requiring disqualification, a part-time town or village justice who also serves as a county court judge’s law clerk may continue to preside in matters that involve legal issues the county court judge has addressed in an appellate capacity.

Rules:          Judiciary Law §14; 22 NYCRR 50.3(a); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 12-75; 11-26; 10-98; 07-194; 99-133 (Vol. XVIII); People v Moreno, 70 NY2d 403 (1987); People v Towndrow, 187 AD2d 194 (4th Dep’t), lv dismissed 81 NY2d 1021 (1993).

Opinion:

         The inquiring part-time town or village justice states that he/she is also employed as a confidential law clerk to a county court judge. According to the inquirer, prior to his/her employment with the county court judge, the county court judge issued a decision that is inconsistent with the inquiring judge’s prior resolution of a particular legal issue. In the inquirer’s view, his/her prior judicial decision was thus effectively “overruled” by the county court judge (cf. People v Towndrow, 187 AD2d 194 [4th Dep’t], lv dismissed 81 NY2d 1021 [1993] [trial courts are bound to follow the holdings of the Appellate Division ]).¹ The inquirer asks whether he/she is now disqualified from presiding in other matters involving the same legal issue because he/she had previously reached an opinion contrary to that of the county court judge for whom he/she now serves as a confidential law clerk.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify him/herself under the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14, and in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         The Committee has advised that a county court judge’s full-time law clerk may also serve as a part-time town justice, subject to any applicable administrative requirements (see 22 NYCRR 50.3[a]), provided that “effective steps can be taken to ensure that the law clerk would have no contact with appeals from that Town Court” (Opinion 99-133 [Vol. XVIII]; see also Opinion 07-194 [a county court judge’s court attorney who also serves as a part-time city court judge must be insulated “from any city court case that is appealed to the county court”]).

          The Rules Governing Judicial Conduct require a judge to “respect and comply with the law” (22 NYCRR 100.2[A]). Therefore, in the Committee’s view, there is no appearance of impropriety when a town or village justice follows binding appellate authority (id.). Nor can the inquiring judge’s impartiality reasonably be questioned simply because the binding appellate authority on a particular legal issue was authored by another judge who currently employs him/her as a law clerk (see 22 NYCRR 100.3[E][1]; cf. Opinion 12-75 [advising that there is no appearance of impropriety merely because a trial court judge is deciding legal issues similar to those that the judge’s spouse is litigating in unrelated matters before other trial court judges]).

          Where, as here, disqualification is not mandated under any objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Therefore, provided the judge can remain fair and impartial, and absent any other disqualifying factor, a part-time town/village justice who also serves as a county court judge's law clerk may continue to preside in matters involving legal issues the county judge has addressed in an appellate capacity (compare Opinions 12-75; 11-26).

_______________________

         ¹ The county court judge addressed the legal issue in its appellate capacity, on review of another town or village justice’s decision; the judge was not reviewing his/her own law clerk’s judicial decision (cf. Opinion 10-98 [advising that a judge “is disqualified from hearing appeals from any order or judgment [his/her court attorney] render[s] as a town justice”]).