Joint Opinion 18-23/18-56

March 29, 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:         (1) A County Court judge whose full-time court attorney is also a town justice within the same county must insulate the court attorney from every matter that touches on an incident over which the court attorney presided as a town court justice, even if it was a completely separate case. The insulation must also be disclosed on the record to all parties and their counsel, and, since disclosure is mandated here in lieu of outright disqualification, the County Court judge must recuse if any party appears without counsel.

(2) A town justice who is a full-time law clerk to a superior court judge may preside over criminal matters returned to the originating court, provided he/she was insulated from such matters as a law clerk.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 16-162; 10-98; 07-194; 99-133; 95-111; 92-115.

Opinion: 

         In these inquiries, two part-time town justices are also employed as a full-time chambers staff to superior court judges within the same county. In Inquiry 18-23, a multi-bench County Court judge asks if he/she must insulate his/her court attorney from cases that have a “minor or tangential relationship” to matters the court attorney previously handled as a local town justice.¹ The County Court judge also asks if he/she must insulate the court attorney from a particular Family Court matter, where the court attorney previously adjudicated a misdemeanor case in the Town Court that included allegations of domestic violence involving the same family. The judge has only a single court attorney, and says “it would be an extreme inconvenience” if he/she “had to be insulated from every matter that touched on an incident where [he/she] sat as [t]own [j]ustice.” In Inquiry 18-56, a town justice who also serves as full-time law clerk to a superior court judge asks whether he/she may preside over matters that return to the Town Court from his/her judge.² The justice states that he/she is “quite familiar with all aspects of the case having reviewed the file and participated in conferences with the [j]udge, prosecutor, and defense counsel.”

          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]). Also, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (22 NYCRR 100.2[B]); and must disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         A full-time court attorney/law clerk to a full time judge may concurrently serve as a part-time judge in the same county (see Opinions 10-98; 07-194; 99-133). However, the part-time judge, in his/her capacity as a non-judicial superior court employee, must not participate in appeals from his/her own judicial decisions or judgments (see Opinions 10-98; 07-194; 99-133).

         In Opinion 16-162, we advised that a superior court judge is not disqualified in cases originating in or appealed from a city, town or village court just because his/her court attorney presided as a part-time judge in that court. But, the judge must insulate the court attorney in all cases arising from the court where his/her court attorney presides and disclose the insulation (see Opinion 16-162; see also Opinions 95-111; 92-115). Later, if the superior court judge can be fair and impartial and no party appears unrepresented the superior court judge may preside (see Opinion 16-162).

         We adhere to Opinion 16-162, and see no reason to create any exceptions to our bright-line rule requiring a non-judicial superior court employee who is a part-time judge within the same county to be insulated from all matters originating from the court in which he/she presides. Thus, it would not be appropriate for the full-time court attorney to work on cases with the inquiring judge in Family Court if he/she previously adjudicated any issues involving the parties while presiding in Town Court, even within the context of a separate criminal misdemeanor case. Litigants and the general public should be assured the superior court judge reaches his/her own, independent conclusions about the case, without the assistance of a justice (i.e. the full-time court attorney) who presided over distinct but related cases in Town Court involving some of the same parties, incidents or legal issues, even if there is only a minor or tangential relationship (see id.).

         Accordingly, the County Court judge in Inquiry 18-23 may preside over matters, despite his/her court attorney’s involvement in the originating court, provided he/she can be fair and impartial and his/her court attorney is insulated from every matter that touches on an incident over which he/she presided as a Town Court justice, even if in a different case. The judge must also disclose the insulation and the basis for it on the record to all parties and their counsel. Because insulation and disclosure are mandated here in lieu of outright disqualification, the judge must recuse if any party appears without counsel; otherwise, the superior court judge may preside after disclosure, even if a party objects, provided he/she can be fair and impartial.

         Consistent with our advice above, the inquiring town justice in Inquiry 18-56 must be insulated, as a superior court law clerk, from all matters originating in the town court where he/she presides. Therefore, we conclude the town justice may accept the return of criminal matters from his/her superior court judge in matters from which he/she was properly insulated.

         Conversely, if the town justice was not insulated from a superior court matter and thus participated substantially in it as a law clerk, he/she must not receive the return of such matter as a town justice.

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¹ For example, the court attorney, as town justice, presided over a driving safety infraction that included a charge of endangering the welfare of a child, and now either the adjudication or the incident itself is relevant to questions in Family Court.

² The town justice explains these cases may be returned for reasons such as “a CPL 180.40 motion when the negotiated plea will be to a misdemeanor, or when the [g]rand [j]ury returns a misdemeanor charge.”