Opinion 15-142

September 10, 2015

Digest:         A part-time town judge who is also executor of an estate that owns real property within the town may retain counsel and petition the town for approval of the beneficiaries’ requested subdivision of the property. Provided the judge can be fair and impartial, the judge may preside when assistant town attorneys who do not participate in the town’s zoning and subdivision matters appear before the judge, and disclosure is not required.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2(A); 100.2(C); 100.3(E)(1)(a)-(f); 100.3(E)(1)(a)(i); 100.4(E)(1); 100.6(B)(1); Opinions 12-96; 11-64; 90-95/90-113/90-115; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time town judge who practices law is the appointed executor for a decedent’s estate which includes real property within the town where the judge presides. The beneficiaries asked the judge, as executor, to subdivide the real property. The approval process will involve “appearances before various town boards and committees having jurisdiction over these [zoning and subdivision] matters.” Indeed, the judge emphasizes “the only place the application can be made is in the town where I preside.” Accordingly, the judge asks if he/she may retain outside counsel to petition the various town boards and commissions for approval of the subdivision.

         If so, the judge further asks if he/she may continue to preside over unrelated cases in which the Town Attorney or assistant town attorneys appear during the pendency of the subdivision application. The judge notes that the Town Attorney has assigned different attorneys from his/her office to advise the town on different matters. Thus, although assistant town attorneys regularly appear in the town court, a different assistant town attorney, who does not appear in the town court, advises the town board and its committees with respect to zoning and subdivision issues. Moreover, the judge states that, as executor, he/she receives “no benefit” from the town’s decision to approve or reject the proposed subdivision plan.

         A judge must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance private interests of the judge or others (see 22 NYCRR 100.2[C]). Nonetheless, a part-time judge, unlike a full-time judge, may serve as executor of an estate “for strangers as well as for persons with whom the judge maintains a close familial relationship” (Opinion 90-95/90-113/90-115; see 22 NYCRR 100.4[E][1] [describing limitations on full-time judges]; 100.6[B][1]). A judge must disqualify him/herself where specifically required by rule or statute (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]), including when the judge has a personal bias or prejudice regarding a party (see 22 NYCRR 100.3[E][1][a][i]), or knows he/she has an economic or other interest that could be substantially affected by the case (see 22 NYCRR 100.3[E][1][c]). Where no specific rule expressly disqualifies the judge, the judge still must decide whether his/her impartiality could nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated by these objective tests, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless he/she doubts his/her own impartiality (see Opinion 11-64).

         The Committee has advised that “a judge may commence an action in a court of competent jurisdiction, whether proceeding pro se or through counsel” (Opinion 12-96). As the estate’s real property cannot be subdivided without approval from the appropriate town regulatory boards, plainly this judge may, as executor, retain counsel to petition the town to allow subdivision of the property.

         Critically, the assistant town attorneys who appear and advise the town and its committees on zoning and subdivision issues do not appear in the town court. Also, the judge says he/she, as executor, has no personal interest in the outcome of the approval process. As the Committee discerns no reasonable, objective basis to question the judge’s impartiality under these facts, disqualification is confined solely to the inquiring judge’s discretion (see People v Moreno, 70 NY2d 403 [1987]). Provided the judge can be fair and impartial, the judge may therefore preside when assistant town attorneys who do not participate in the town’s zoning and subdivision matters appear before the judge, and disclosure is not required.