Opinion 14-84

June 12, 2014

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).

Digest:         A town justice is disqualified, subject to remittal where applicable, in cases involving a store owned by a town board member who participates in setting the judge’s salary and the court’s budget.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-36; 13-64; 12-72; 11-64; 09-138; 09-106; 88-60 (Vol. II); Joint Opinion 88-17(3)/88-34 (Vol. II); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring town justice asks whether he/she may preside in cases involving a small local store which is solely owned by a town board member who participates in setting the judge’s salary and the court’s budget. The judge anticipates that such cases could involve issues such as “shoplifting, bad checks, civil matters, etc.” The judge notes that he/she can be fair and impartial in such cases, but asks whether disqualification is nonetheless required.

         A judge must always avoid even the appearance of impropriety (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]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         The Committee notes preliminarily that the mere fact that the shop is a local one does not, without more, call into question the judge’s impartiality, even if the judge him/herself makes purchases there (see Opinion 88-60 [Vol. II] [advising a town or village justice that “you need not disqualify yourself in cases involving crimes committed at a store where you shop, unless special circumstances militate otherwise”]).

         However, as summarized in Opinion 12-72, the Committee has consistently 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 (Opinions 09-106; 94-61 [Vol. XII]; 91-63 [Vol. VII]; Joint Opinion 88-17[b]/88-34 [Vol. II]). In the Committee's view, the judge’s impartiality might reasonably be questioned under those circumstances. Similarly, the Committee has advised that a part-time judge must disqualify him/herself in matters where a deputy sheriff, who also serves on the town board and participates in setting the judge’s salary, appears before the judge as prosecutor or witness (Opinions 09-16; 90-175 [Vol. VI]).

Indeed, this principle applies “in any type of action” (Joint Opinion 88-17[b]/88-34 [Vol. II]), including at criminal arraignments which may occur outside of regular business hours (see Opinion 14-36).

         The Committee believes the same principle applies to the present inquiry. Of course, in some cases the named plaintiff or defendant in a civil matter -- or the named complainant in a criminal matter -- may be the store, rather than the individual town board member who owns the store. However, the Committee believes that under the specific circumstances presented here, the public is likely to perceive in such cases that the town board member has interests that are largely indistinguishable from the small store he/she solely owns.²

         Accordingly, the Committee concludes that the inquiring town justice is disqualified in cases involving a store that is owned by a town board member who participates in setting the judge’s salary and the court’s budget (see Opinions 14-36; 12-72; 09-106; 22 NYCRR 100.3[E][1]).

         The Committee further notes that the judge’s disqualification is subject to remittal where permitted by the Rules and the Committee’s prior opinions (see 22 NYCRR 100.3[F]; Opinion 13-64 [describing the instances in which remittal is unavailable]). For example, the Committee has advised that remittal is not available if any party is appearing without counsel, or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see Opinion 13-64).

         In accordance with these authorities, since the inquiring judge states that he/she can be fair and impartial in matters involving the store, the judge’s disqualification is subject to remittal after full disclosure on the record, unless a party is appearing without counsel (see Opinions 13-64; 11-64; 22 NYCRR 100.3[F]).³

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     ¹ There are two initial objective questions to consider when determining if disqualification is required. The first is whether disqualification is mandated under the specific circumstances enumerated in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law §14. Where, as here, none of those 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 the objective standards of those two questions, 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 (see Opinion 11-64).

     ² For example, there is no indication in the inquiry that the store has been organized as a separate legal entity from its owner, or that it has multiple commercial locations or multiple independent owners.

     ³ Where permitted, the Committee has advised that 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 that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate 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 into the record of the proceeding (see Opinion 09-138, relying on 22 NYCRR 100.3[F]).