Opinion 16-174

March 15, 2017

PERSONAL & CONFIDENTIAL

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).

Dear :

         This responds to your inquiry (16-174) asking 1) whether you may preside in matters involving a local probation officer who has been recently appointed to serve on the village board in the same village where you serve as part-time justice; 2) whether you may preside in matters involving the probation officer’s subordinates and their probationers; and 3) whether you may preside in matters involving the probation officer who will be running for election on the same slate as you.

         A part-time village justice is disqualified subject to remittal in any matter where a village board member is involved in a matter pending before the judge. Remittal is unavailable in any case where a party is self-represented. If other probation officers or probationers appear, the part-time judge need not recuse, unless the probation officer/village board member is involved in the matter either directly or in a supervisory capacity.

         The fact that you and the probation officer/village board member will be running on the same slate does not create a reasonable basis to question your impartiality and, therefore, does not alter the analysis concerning disqualification.

         As a reminder, when running on the same slate, a judicial candidate must refrain from endorsing another candidate but may otherwise participate in activities involving the slate of candidates, subject to the Rules Governing Judicial Conduct (see e.g. 22 NYCRR 100.5 [political activity]). If you have any questions about your judicial campaign, you may contact the Judicial Campaign Ethics Center (http://www.nycourts.gov/ip/jcec/) for guidance.

         Enclosed, for your convenience, are Opinions 16-21; 15-121; 14-84; and 09-16 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.