Opinion 18-103

June 21, 2018

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:         Where a judge resides on a street owned by a golf course and has an ongoing financial relationship with other residents and the golf course to pay for street maintenance and repair costs, the judge is disqualified, subject to remittal: (1) in all cases involving the golf course, for as long as the judge resides on the street or maintains the financial relationship with the golf course and (2) in all cases involving the neighbors who share in street maintenance, for as long as they maintain this financial relationship. The judge’s obligation ends once the business/financial relationship completely terminates. As always, remittal is not available if any party is appearing without counsel.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-160; 17-143; 16-24; 12-13; 04-42; 96-55.

Opinion:

         A judge resides on a street owned by a golf course. The judge has an ongoing relationship with the golf course and other residents on the same street to each pay their share of maintenance, snow plowing and other necessary street-related expenses. The judge asks if he/she may preside in cases involving the golf course and/or neighbors in the informal street maintenance association. The judge also asks if there are additional factors should the neighbors appear before him/her without counsel.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a way that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself when required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows he/she has “an economic interest in the subject matter in controversy or in a party to the proceeding” (22 NYCRR 100.3[E][1][c]).

         A part-time judge who owns a local insurance and real estate agency is disqualified in cases involving holders of insurance policies obtained through the judge’s agency (see Opinions 17-160; 96-55), and a full-time judge who receives a fixed monthly pension from his/her former law firm is likewise disqualified from matters involving the firm (see Opinion 04-42). In both instances, the disqualification is subject to remittal, provided no party is appearing without counsel. The same principle applies here, because this judge likewise has an ongoing business and financial relationship with the golf course and his/her neighbors in the informal road maintenance association.

         Accordingly, we conclude this judge is disqualified, subject to remittal: (1) in all cases involving the golf course, for as long as the judge resides on the street or maintains the financial relationship with the golf course and (2) in all cases involving the neighbors who share in street maintenance, for as long as they maintain this financial relationship. In either circumstance, the judge’s obligation ends once the business/financial relationship completely terminates.

         However, remittal is not available if any party is appearing without counsel (see e.g. Opinion 17-160). Thus, the judge must simply disqualify him/herself if a neighbor who shares road maintenance costs appears before him/her pro se.