Opinion 16-21

March 16, 2016

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 part-time judge, presiding without a jury, is disqualified, subject to remittal, if a town board member who votes on setting the judge’s salary is a necessary witness whose credibility the judge must evaluate.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 12-72; 09-106; 09-16; 94-61; 91-63; 90-175; 88-17(b)/88-34.

Opinion:

         A part-time judge is presiding in an ongoing, multi-defendant non-jury criminal trial. At a recent conference during the trial, counsel indicated, for the first time, that he/she wished to call a witness who is a town board member. Counsel further advised the judge that, during a pre-trial interview, the witness mentioned the town board’s recent vote on judicial salaries. The parties have declined to stipulate to the town board member’s testimony; instead, they jointly advised the judge “that the testimony of the witness was necessary for each of their purposes.”

         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 certain circumstances, the judge may “disclose on the record the basis of the judge’s disqualification” and permit the parties to consider remittal, unless a party appears without representation (see 22 NYCRR 100.3[F]).

         The Committee has consistently advised that a part-time judge must disqualify him/herself when a town board member or village trustee who participates in setting the judge’s salary or the court’s budget appears as a litigant or as counsel for a party (see Opinions 09-106 [although judge serves without compensation, village trustees set the village court budget]; 94-61; 91-63; 88-17[b]/88-34). Similarly, the Committee has advised that a part-time judge must disqualify him/herself in contested matters where a deputy sheriff who is a town board member and participates in setting the judge’s salary appears before the judge as a prosecutor or witness (see Opinions 09-16; 90-175). In each instance, the Committee has recognized that a judge’s impartiality might reasonably be questioned where the judge is required to evaluate the credibility and conduct of a person who participates in setting the judge’s salary (see Opinion 12-72).

         This judge became aware the town board member would be called as a witness only after the trial had commenced. Both sides have concluded the town board member’s testimony is necessary and have declined to stipulate to it. Accordingly, the judge would be required to evaluate the credibility of the town board member’s testimony, following a recent vote on the judge’s salary. Under these circumstances, the judge’s impartiality might reasonably be questioned were he/she to preside in the case (see 22 NYCRR 100.3[E][1]; Opinions 12-72; 09-16; 90-175). The judge is therefore disqualified, subject to remittal (see id.).

          Remittal is not permitted if any party is appearing pro se, or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies:

First, the judge must fully disclose the basis for disqualification on the record . . . Second, . . . without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (Opinion 12-72; see 22 NYCRR 100.3[F]).

Absent proper remittal of disqualification, the matter must be reassigned to another court because the town board member participates in setting judicial salaries and the court’s budget.