Opinion 89-93

September 12, 1989

Digest:         A judge of a county-level state-financed court need not disqualify himself or herself, where a state senator or member of the assembly appears as attorney for one of the parties, even though the State Legislature establishes the salaries for the judges of all courts other than town and village courts.

Rules:          22 NYCRR 100.2 (a), 100.3 ( c)(1), 100.3 (d); Opinions 88-126; 88-41; 88-17 (b).

Opinion:

         A county-level judge asks about the necessity of recusal when a state senator or member of the assembly appears before the judge as attorney for one of the parties, because of the salary-setting implications, that is, the State Legislature sets the salaries of all judges in the court system except town and village judges.

         In Opinion 88-17(b), 88-41 and 88-126, this Committee has held that a town or village justice shall disqualify himself or herself if a town or village councilman is an attorney for one of the parties appearing in the town or village court, where that councilman participates in setting the justice’s salary. This disqualification, however, is subject to waiver.

         Rule 100.2 (a) of the Rules of the Chief Administrator of the Courts states that judges must avoid impropriety and the appearance of impropriety by complying with the law and conducting themselves at all times “ . . . in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.”

         Rule 100.3 ( c)(1) states that judges shall disqualify themselves in proceedings where their “. . . impartiality might reasonably be questioned, including but not limited to circumstances where: . . . (iii) the judge knows that, he or she, individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. (emphasis added)

         There is a major difference in salary-setting, however, between judges of courts of record and town and village justices. The legislative body of the entire state acts on the salaries of all judges of courts of record, while a small body of councilpersons or supervisors acts on the salary of town and village justices. The relationship between the judge and the salary-setting attorney is rightly perceived by the public to be much closer in a town or village.

         For this reason a county-level judge is not required to disqualify himself or herself when a state senator or member of the assembly is an attorney in litigation in the judge’s court.