July 10, 2018
This answers your inquiry (18-86) asking if you may preside in a criminal matter involving a defendant’s alleged disruptions at and after a local zoning board now that the defendant has filed a notice of claim against the town for damages arising from the same incident. You state concern that your status as “a resident and taxpayer” of the same town may be seen as a disqualifying “interest” in the criminal matter’s outcome, as a conviction may affect the success of defendant’s civil suit.
The Committee has previously advised that a judge’s mere status as a resident and taxpayer, does not automatically require recusal. Thus, a town or village justice is not disqualified merely because the same town or village is a party to litigation. Indeed, any rule requiring automatic recusal merely because a litigant sues the town could enable disgruntled litigants to engage in forum shopping. Thus, provided a judge believes he/she can be fair and impartial, recusal remains a matter confined solely to the judge’s conscience, absent some other disqualifying factor.
Enclosed, for your convenience, are Opinions 14-105; 14-58; 10-151; and 88-17(b)/88-34, which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court