Opinion 14-72

June 12, 2014

Digest:         Where the town board does not participate in setting the village court’s budget or its justice’s salary, and when members of the town board appear in the village court, a village justice’s impartiality cannot reasonably be questioned simply because the town board pays a portion of the village court’s clerical expenses.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-65; 14-36; 11-64; 11-02; 09-106; 94-61 (Vol. XII); 91-63 (Vol. VII); Joint Opinion 88-17(b)/88-34 (Vol. II); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time village justice asks if he/she may preside in matters involving town board members, given the town has agreed to pay for a portion of the village court’s clerical expenses. The judge explains the village, not the town, sets the judge’s salary.

         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Also, a judge must disqualify him/herself when the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         The Committee previously has advised that a part-time judge should disqualify him/herself in matters involving a town board member or village trustee as a private litigant or as counsel for a party, if the town board member or village trustee participates in setting the judge’s salary (see Opinions 14-36; 09-106; 94-61 [Vol. XII]; 91-63 [Vol. VII]; Joint Opinion 88-17[b]/88-34 [Vol. II]) or the court’s budget (see Opinion 09-106).

         Conversely, the Committee also has advised that a town judge may preside in a case involving the town highway superintendent or other town official, provided such official does not participate in determining the judge’s salary or the court’s budget (see Opinions 14-65; 11-02).

         Because, under these facts, the town board has no part in setting the village court’s budget or its justice’s salary, the Committee concludes the inquiring village justice’s impartiality cannot be reasonably questioned - when a town board member appears - based solely on the fact that the town board has decided to pay a portion of the clerical expenses of the village court (see generally 22 NYCRR 100.3[E][1]; Opinions 14-65; 14-36; 11-02; 09-106). Accordingly, the inquiring village justice may preside over matters where a town board member appears, provided he/she can be fair and impartial (see generally People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 11-64).

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     ¹ There are two initial objective questions to consider when determining if disqualification is required. The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14. Where, as here, none of the enumerated circumstances applies, the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside and remittal is unavailable (see Opinion 11-64).