Opinion 05-103

October 27, 2005

Digest:         An acting village justice who is appointed by the village mayor who also is the justice’s parent, must exercise recusal in any case involving the village government or the justice’s parent as a party. While remittal of disqualification would be available in cases involving the village government as a party, remittal is not available in cases where the justice’s parent is a party.

Rules:          22 NYCRR 100.2; 100.2(B); 100.3(E)(1); 100.3(E)(1)(d) (i),(ii); 100.3(F); Opinion 90-21 (Vol. V).  

Opinion:

         A part-time acting village justice asks if any conflict of interest exists given that the justice was appointed by the village mayor who also is the justice’s parent.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (22 NYCRR 100.2), and must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinion 90-21 (Vol. V), this Committee advised that a judge must exercise recusal in cases where a party is

represented by a practicing attorney who as mayor of the municipality where the court is located initially appointed the judge to judicial office. In the present inquiry, the relationship between the acting village justice and the mayor is familial and thus presumed to be even closer.

         With respect to family members, a judge cannot allow family relationships to influence the judge’s judicial conduct or judgment. 22 NYCRR 100.2(B). In addition, a judge must disqualify himself or herself in any proceeding where a party or an officer of a party is a relative within the sixth degree of relationship. 22 NYCRR 100.3(E)(1)(d)(i),(ii). It is the Committee’s view, therefore, that the acting village justice must exercise recusal in matters involving the village government, as well as any other matters in which the acting village justice’s parent is a party. While remittal of disqualification in accordance with section 100.3(F) would be available in cases involving the village government, remittal would not be available in cases where the acting village justice’s parent is a party.