Opinion 94-101

November 15, 1994

Digest:         A part-time acting judge, whose spouse is a member of the village board of trustees, may run, and if successful, may serve as a village justice, subject to disclosure and recusal or remittal on consent in matters involving the village.

Rule:            22 NYCRR 100.3(C)(1)(iv)(a); 100.3(d); 100.2(a)&(b)

Opinion:

         A part-time acting village justice who has been appointed annually for the past ten years, is planning to run for the position of village justice. The spouse of the judge is a member of the five-member village board of trustees, and the spouse always abstains from voting whenever the village board acts on the question of the inquirer's salary. The justice is inquiring as to the propriety of serving as village justice with a spouse on the village board of trustees.

         Section 100.3(c)(1)(iv)(a) of the Rules of Chief Administrator directs a judge to offer recusal when the judge's spouse ...(a) is a party to the proceeding, or an officer, director or trustee of a party; ...". Section 100.3(d) of the Rules, entitled Remittal of Disqualification, then permits a judge to continue presiding in such case, so long as the spousal relationship has been disclosed and the parties consent to the judge's continuance. The justice must disclose the relationship in any case where the village is a party and then proceed accordingly.

         Accordingly, there is no prohibition against being a village justice when the justice's spouse is a member of the village board of trustees, subject to disclosure and recusal or remittal on consent if the matter involves the Village of which the judge's spouse is a trustee.