Opinion 17-113

October 11, 2017

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Dear :

         This responds to your inquiry (17-113) asking whether you may continue to serve as an acting village justice if your spouse is elected to serve as a village trustee.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must disqualify him/herself in a proceeding in which the judge’s spouse is a trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]). Therefore, you will be disqualified in all cases involving the village as a party, but the disqualification is subject to remittal provided that no party is appearing without counsel.

As a reminder, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree the judge may preside. Third, the judge must independently conclude he/she can be impartial and be willing to preside in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement in the record of the proceeding (see e.g. Opinion 15-82; 22 NYCRR 100.3[F]).

Enclosed, for your convenience, are Opinions 16-144; 16-66; 15-82 and 94-101 which address this issue.

Very truly yours,

                             George D. Marlow, Assoc. Justice

                              Appellate Div., First Dep’t (Ret.)

                             Committee Co-Chair

                             Hon. Margaret T. Walsh

                             Family Court Judge

                             Acting Justice, Supreme Court

                             Committee Co-Chair

Encls.