Opinion 95-98

September 21, 1995

Digest:         The joinder of an Appellate Division justice and a Family Court judge as co-plaintiffs in an action challenging disparity in judicial pay does not require the Appellate Division justice to disqualify him/herself from hearing appeals originating in the Family Court.

Rules:          22 NYCRR 100.2; 100.3(c)

Opinion:

         A justice of the Supreme Court, Appellate Division, intends to join with a Family Court judge as co-plaintiffs in an action challenging disparity in judicial pay. The judges would be retaining a single attorney to represent both of them. The inquiring judge asks whether, under such circumstances, there would be an appearance of impropriety, if he/she continued to hear appeals in cases originating in the Family Court where the judge's co-plaintiff presides and, therefore, whether there should be recusal in all such cases. If recusal is required the judge would decline to join with the Family Court judge as a co-plaintiff in the contemplated action.

         It is the Committee's opinion, that the inquiring judge is not disqualified from hearing such appeals. The relation of appellate judge to lower court judge is not the same as that of a judge and a party and therefore the Committee does not believe there would be an appearance of impropriety under the circumstance described.