Opinion 14-36

March 13, 2014

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 town/village justice may not preside during an arraignment at which a town or village board member, who participates in setting the judge’s salary, appears as the prosecution’s sole representative.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 13-64; 12-72; 09-106; 09-16; 08-71; 94-61 (Vol. XII); 91-63 (Vol. VII); 90-175 (Vol. VI); Joint Opinion 88-17(b)/88-34 (Vol. II).

Opinion:

         A town/village justice states that a local law enforcement officer was recently elected a member of the town/village board that sets the judge’s salary. The judge asks whether disqualification is required when this individual appears with a defendant, at arraignment, in his/her law enforcement capacity. The judge notes that many arraignments occur outside of regular business hours, without a prosecutor present, and a law enforcement representative will typically “participate in the arraignment including answering questions posed by me regarding CPL Articles 510 & 530.”

         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]). Thus, a judge must disqualify him/herself when the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 12-72, the Committee summarized prior opinions as follows:

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, the inquiring judge’s impartiality can also be reasonably questioned if he/she presides over an arraignment at which a town or village board member, who participates in setting the judge’s salary, appears before the judge as the sole representative of the prosecution (see Opinion 90-175 [Vol. VI]; cf. Opinion 08-71 [where a judge is disqualified from presiding over matters involving a particular attorney, the disqualification includes all matters in which the attorney appears, “even if the judge deems these appearances to be ‘routine’ or ministerial in nature,” such as “routine calendar appearances, arraignments or omnibus motions”]). The judge must therefore disqualify him/herself from the matter.¹

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     ¹ Although disqualification on this ground would ordinarily be subject to remittal (see Opinion 90-175 [Vol. VI]), the Committee has advised that remittal is not available if any party is appearing without counsel (see e.g. Opinion 13-64).