Opinion 17-118

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 (17-118) asking if you may continue presiding over (a) civil cases where the town is a party and (b) violations prosecuted by the town attorney pursuant to authority delegated by the District Attorney, when a person you have treated as a first-degree relative becomes town supervisor.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promote 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 when the judge knows a person within the sixth degree of relationship to the judge or his/her spouse is an “officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]). Accordingly, a judge whose first-degree relative is the town supervisor must disqualify him/herself in any proceeding in which the town is a party. However, 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]).

         As to violations prosecuted by the town attorney pursuant to the authority delegated by the District Attorney, you may preside, absent other disqualifying factors. Neither disclosure nor disqualification is required.

         Enclosed, for your convenience, are Opinions 16-166; 16-66; 14-111; 10-146 which address these issues.

_______________________________

     ¹Although you and your spouse are not related by blood or marriage to the candidate for town supervisor, the rules and our prior opinions recognize that a member of a judge’s family includes a “person with whom the judge maintains a close familial relationship” (22 NYCRR 100.0[I]; Opinion 16-66).

                                       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.