Opinion 18-141

October 18, 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:         A part-time judge is not disqualified when a relative (other than a spouse) of a town board member or the town supervisor, who are involved in setting the judge’s salary, appears as a witness or prosecutor, but is disqualified when the town supervisor’s child or grandchild appears as a party.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 13-64; 12-72.

Opinion:

         A part-time town judge inquires whether he/she is disqualified in cases involving (1) a law enforcement officer witness who is a child of a town board member; (2) a party who is a child or grandchild of the town supervisor; or (3) the town dog control officer, who is a first cousin of the town supervisor.¹ The town supervisor drafts the town budget, including the judge’s salary, and the town board members set the judge’s salary as part of the town budget. The town dog control officer enforces the dog control laws and acts as the prosecutor in dog control cases.

         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 disqualify when his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         In Opinion 12-72, modifying prior opinions, we concluded that when a relative (other than a spouse) of a town board member who participates in setting a judge’s salary appears before the judge only as a witness, and not as a party, the judge need not recuse, as “the public will readily perceive that a board member’s relationship” with non-spouse relatives “who do not reside in the board member’s household is ordinarily more attenuated and does not raise a reasonable question as to the judge’s impartiality.”

         Further, if disqualification is not required when a person appears as a witness, it is also not required when that person appears merely as counsel, inasmuch as a public perception of partiality is greater when a witness’s credibility must be assessed than when counsel’s arguments must be evaluated.

         Accordingly, assuming this judge can be fair and impartial, he/she may preside when the town board member’s child appears as a law enforcement witness, or when the town dog control officer who is a first cousin of the town supervisor appears as a prosecutor.

         However, disqualification is required when a town board member’s first- or second-degree relative is a party, rather than merely a witness (see Opinion 12-72 [citing prior opinions involving a spouse, child, or sibling]). As we explained, “a judge’s impartiality might reasonably be questioned, and disqualification is therefore required, when certain close relatives of a town or village board member who participates in setting the judge’s salary appears in the judge’s court” (id.). Accordingly, the inquiring judge is disqualified when a child or grandchild of the town supervisor appears as a party. Such disqualification is subject to remittal, unless a party appears without representation (see 22 NYCRR 100.3[F]; Opinion 13-64).

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¹ Relatives within the second degree of relationship include a child or grandchild of the judge or his/her spouse or the spouse of such a person. A first cousin by blood or marriage is a fourth-degree relative.