Opinion 18-85

June 28, 2018

Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

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).

Dear :

         This responds to your inquiry (18-85) asking whether you may preside over a criminal matter involving the town highway superintendent where the town supervisor has alleged misconduct against him/her. The town supervisor, as the complainant, has given sworn statements to the police against the highway superintendent and may be called as a witness in the criminal case. However, the town supervisor, in his/her official capacity, participates in setting judicial salaries and the town court’s budget.

Generally, a judge must avoid impropriety and the appearance of impropriety in all the judge’s activities and must always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2; 100.2[A]). Thus, the Committee has previously advised that, where a town councilperson or village trustee, who sets a judge’s salary, appears before that judge as a party or, as here, as the complaining witness, the judge should disqualify him/herself as there may be an appearance of impropriety (see 22 NYCRR 100.3[E][1]).¹

         Disqualification is NOT subject to remittal in certain situations. For example, remittal is prohibited in four identified situations in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[F]).² In addition, remittal is not permitted if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure on the record as to the basis for disqualification, or if the judge doubts his/her ability to be impartial.

         Assuming, however, that all parties are represented by counsel, and the judge offers an opportunity for remittal, the usual three-step remittal 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.

         Accordingly, if none of the mandatory disqualifying situations apply here, you may (assuming you can be fair and impartial) allow the parties and their counsel the opportunity to remit disqualification following full disclosure on the record in accordance with prior opinions. Alternatively, you may simply disqualify yourself.     

         Enclosed, for your convenience, are Opinions 17-160; 16-163/16-170; 16-130; and 09-106 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t

                                                 Committee Co-Chair

                                                Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                Acting Justice, Supreme Court

                                                Committee Co-Chair

Encls.

_______________________________

         ¹As all the justices in this court would necessarily appear to have the same ethical quandary, the criminal action should be removed to another jurisdiction unless, at the first court appearance, all parties are represented by counsel and disqualification is remitted in accordance with prior opinions after full disclosure on the record.

         ²Rule 100.3(F) prohibits remittal of disqualification in four scenarios, i.e., if the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding.