Joint Opinion 88-17(b); 88-34

April 11, 1988

Topic:          Disqualification of town justice from hearing a matter where (1) the town is a party to litigation or (2) a town councilman is a private party to litigation or an attorney for a private party.

Digest:         A town justice need not disqualify himself or herself where the town is a party to litigation but should disqualify himself or herself, subject to a remittal of disqualification, where a town councilman or member of the town board who participates in setting the justice’s salary is a private litigant or attorney for a private litigant.

Rules:          Judiciary Law, §15; 22 NYCRR 100.2(a), 100.3(c)(1); Canons 3C and 3D of the Code of Judicial Conduct.

Opinion:

         Three town justices ask the Committee two related questions, which may be summarized as follows: (1) whether a town justice is required to recuse himself or herself where the town is a party to litigation and the justice, as a resident and taxpayer of the town, has some interest in the outcome, and (2) whether a town justice is required to recuse himself or herself where a town councilman or member of the town board who participates in setting the justice’s salary is a private party or an attorney to a private party in litigation before the court.

         The Committee answers the first question in the negative and the second in the affirmative.

         1. A town justice is not disqualified merely because the town is a party to litigation in the town court, although the town justice is a resident and taxpayer in the town.

         Section 15 of the Judiciary Law provides that “A judge of a court of record is not disqualified from hearing or deciding an action, claim, matter, motion or proceeding by reason of his being a resident or taxpayer of the town, village, city or county, interested therein.” While the Judiciary Law is silent as to courts not-of-record, and while town courts are courts not-of-record, the Committee believes the ethical principle is the same as to those courts as it is to courts of record with respect to this question.

         Absent any more specific reason for disqualification, a justice of a town court is not disqualified from hearing or deciding an action, claim, matter, motion or proceeding where the town is party, merely because the justice is a resident taxpayer of the town and thereby interested in the outcome of litigation affecting the town. The justice is not disqualified merely because one of the parties to the litigation is the town in which the justice holds elective or appointive office. Examples of this are matters customarily handled by courts not-of-record: the town police department prosecuting a traffic offense, prosecuting building code violations, or prosecuting violations of the Agriculture and Markets Law (e.g. dog license actions under section 113), and violations of a towns’ ordinance or licensing procedures. Moreover, the judge may preside when the town is a party plaintiff or defendant in a civil action, provided the town court has jurisdiction of the matter.

         2. When a town councilman or board member appears as a private litigant in his or her individual capacity, or as an attorney for a private litigant, in any type of action before the town justice, and where such official participates in setting the justice’s salary as part of the official’s duties, the justice should disqualify himself or herself to avoid the appearance of impropriety. Section 100.2(a) of the Chief Administrator’s Rules of Judicial Conduct (22 NYCRR 100.2(a)) require that a judge “conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Hearing a case involving a private party or attorney who, in another capacity, determines the justice’s judicial salary, necessarily creates an appearance of impropriety. However, in such circumstances, if the parties are aware of the relationship and agree in writing or on a written court record, independently of the justice’s participation, that the justice may participate in the proceeding (Canon 3D of the Code of Judicial Conduct; 22 NYCRR 100.3(d)), the justice then no longer is disqualified and may so preside.

         This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.