Opinion 18-139

September 6, 2018

Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.

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:         (1) Where a town justice has filed a tax certiorari case in Supreme Court challenging the valuation of his/her property in the town and the town attorney is defending the town in Supreme Court: (a) while the tax certiorari proceeding is pending, the judge is disqualified from all matters in which the town attorney appears or in which the town itself is a party; (b) this disqualification is subject to remittal consistent with prior opinions; (c) the disqualification ends when the tax certiorari case ends. (2) We decline to answer legal questions and/or questions about a co-judge’s conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 18-32; 16-130; 14-11; 10-209; 08-59; 98-161.

Opinion:

         The inquiring town justice has filed a tax certiorari case in Supreme Court challenging the valuation of his/her property in the town. In the tax certiorari case, the town attorney is representing the town. The judge asks several questions about his/her obligations to disclose or disqualify him/herself.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         A judge who is a litigant in his/her personal capacity is disqualified, subject to remittal, from (1) all cases in which his/her litigation opponent appears as a party (see Opinions 08-59; 14-11)¹ and (2) all cases in which adverse counsel appears. However, the obligation terminates once the litigation ends (see Opinions 10-209; 98-161).²

         As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:

As always, remittal is not permitted if any party appears 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 disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

         The judge further asks if he/she may instead make “full disclosure on the record” and then “allow the [town attorney] and [his/her] client to decide whether to waive the conflict.” This alternative procedure is impermissible. Where a judge is disqualified, he/she must not preside unless there is remittal of disqualification pursuant to 22 NYCRR 100.3(F) and our opinions. The judge’s alternative procedure would improperly put the burden on the parties and their counsel to affirmatively object to the judge’s presiding over the case, rather than putting the burden on the judge to disqualify him/herself in the first instance. Moreover, remittal of disqualification cannot be accomplished by obtaining the consent of only one side; it requires the agreement of all parties that have appeared and not defaulted and their counsel.

         We decline to answer the judge’s remaining questions, as they either involve his/her co-judge’s conduct or else raise primarily legal issues.

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¹ We note that Opinion 08-59 effectively amended Opinion 04-66 to require disqualification subject to remittal.

² Where an attorney previously represented a judge’s first-degree relative, we have required disqualification during the representation and disclosure in lieu of outright disqualification for a two-year period after the matter is concluded (see e.g. Opinion 18-32). We instead choose to follow Opinions 10-209 and 98-161 here.