Opinion 88-41

April 11, 1988

Topic:          Village Justice hearing a case involving a Village Trustee.

Digest:         A Judge should disqualify himself in an action where a party in a small claims part is a member of the Village Board of Trustees, who participates in setting the Judge's salary.

Rules:          Canon 3C, 3D, 22 NYCRR 100.2(a), 100.3(c)(1)

Opinion:

         A Village Justice inquires whether he should be disqualified from presiding in an action where the defendant is a member of the Village Board of Trustees, who participates in setting the judge's salary and the Justice Court's budget.

         Canon 3C of the Code of Judicial Conduct, provides that:

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned ....

         Section 100.2(a) of the Rules of the Chief Administrator states that a judge shall “conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

         Although the Village Justice in this case has stated that be would not be unduly influenced toward the defendant in this matter by virtue of his position as Village Trustee, this advisory opinion does not turn on the question of this Judge's impartiality but on appearance to the litigants and the public.

         Here, there would be a clear appearance of impropriety, so the judge should disqualify himself in this case. It should be noted that whenever a judge determines to disqualify himself by reason of any relationship to an attorney or party appearing before him, the parties may agree in writing, independently of the judge's participation, that the judge may participate in the proceeding (Canon 3[D], 22 NYCRR 100.3[d]).

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