Opinion 15-16

January 29, 2015

Digest:         A village justice may preside when village police officers appear in the village court.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-65; 14-36; 11-64; 11-13; 11-02; 10-123; 09-106; 07-22; 94-84; 94-61; 91-63; 88-52; Joint Opinion 88-17(b)/88-34; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A village justice asks whether he/she may preside in cases in which village police officers appear. The judge characterizes the relationship between him/herself and the village police officers as that they are both “employees” of the village.¹ That is, the inquiring judge has “no social or other relationship with those officers outside of their court appearances.”

         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]) and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).²

         The Committee has consistently advised that a part-time judge should disqualify him/herself when a town board member or village trustee appears as a private litigant or counsel for a party, if the town board member or village trustee participates in setting the judge’s salary (see Opinions 14-36; 09-106; 94-61; 91-63; Joint Opinion 88-17[b]/88-34) or the court’s budget (see Opinion 09-106).

         Conversely, the Committee has advised that a town justice may preside in a case involving the town highway superintendent or other town official, provided such official does not participate in determining the judge’s salary or the court’s budget (see Opinions 14-65; 11-02). The Committee has also advised that a town or village justice may preside in matters where the local town or village attorney appears, as the mere fact that they both are “employees” who serve the same municipality in their respective capacities does not give rise to a disqualifying relationship (see Opinions 11-13; 07-22; 94-84; 88-52).³

         Here, too, the village police are village employees who do not participate in setting the village justice’s salary or the village court’s budget. Therefore, absent any other conflict, the judge may preside when village police officers appear before him/her in the village court (see e.g. Opinions 14-65; 11-02). The village justice need not disclose that the police officers are village employees, and need not offer to disqualify him/herself.

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         ¹ While the inquiring judge presumably holds public office either by appointment or election, the Committee understands that the village sets the salary for, and pays, both the inquiring village justice and the village police officers.

         ² Where, as here, disqualification is not mandated under the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14, a judge must consider whether his/her impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside and remittal is unavailable (see Opinion 11-64).

         ³ Of course, with respect to village employees who serve as court personnel in the judge’s court, certain additional considerations would apply. For example, the Committee has advised that although a village justice need not disqualify him/herself when a law firm that employs the village justice court clerk’s non-lawyer child as a paralegal appears in the judge’s court, the judge must insulate the court clerk from any matter in which the firm is involved (see Opinion 10-123). However, village police officers are not court personnel; they are witnesses who testify in the judge’s court.