Opinion 91-129

October 31, 1991

Digest:         There is no requirement per se that a part-time judge recuse himself or herself from a non-jury trial where the defendant was campaign-treasurer for the judge’s opponent two years ago and where a retired judge of the same court represents the defendant.

Rules:          22 NYCRR §100.3.

Opinion:

         A part-time judge has pending a housing code violation involving a defendant who served two years ago as campaign-treasurer for the judge’s opponent. The campaign was neither personal nor bitter and the attorney candidate has appeared before the judge several times without difficulty or objection. The judge has advised defendant’s attorney that the judge harbors no ill will toward the defendant and was unaware of the defendant’s role as treasurer for the judge’s opponent until so advised by the defendant’s attorney, a retired part-time judge who served on the same court as the inquiring judge.

         There is no rule which, per se, requires the judge to recuse himself or herself from presiding at this bench trial. Section 100.3 of the Rules of the Chief Administrator sets forth situations when a judge is disqualified, but beyond those parameters, the detemination to recuse is largely subjective and rests at the discretion of the court. On the facts presented, the judge is not automatically required to disqualify himself or herself from presiding at a non-jury trial, merely because the defendant was the campaign treasurer for the judge’s opponent two years ago or because the attorney representing that defendant is a former judge of the same court where the case will be tried.