September 10, 2020
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 court attorney-referee must disqualify him/herself in small claims real property tax assessment review proceedings that involve properties in his/her own neighborhood or in any other area of the town where a ruling might affect his/her own real property assessment. If any party is appearing without counsel, the disqualification is not subject to remittal.
Rules: 22 NYCRR 100.0(D); 100.0(D)(5); 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.3(E)(1); 100.3(E)(1)(c); 100.6(A); Opinions 20-22; 18-103; 14-04; 11-125; 10-151.
A court attorney-referee has been assigned to handle small claims real property tax assessment review proceedings in the county where he/she resides. Most homeowner litigants appear without legal representation. The referee owns a home in the county and some of the properties in question are in his/her neighborhood.1 Accordingly, the referee asks if he/she may hear small claims real property tax assessment review proceedings where (1) the referee is personally acquainted with a homeowner; (2) the home is located in the town where he/she resides; and/or (3) the properties being reviewed are within one or two blocks of his/her residence.
As quasi-judicial officials, court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their duties and must otherwise “so far as practical and appropriate” use the Rules to guide their conduct (22 NYCRR 100.6[A]). Thus, they 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]). They must avoid impermissible ex parte communications and public comment about pending or impending proceedings (see 22 NYCRR 100.3[B]; 100.3[B]). A referee is also disqualified in any proceeding where his/her “impartiality might reasonably be questioned” (22 NYCRR 100.3[E]), including when the referee knows that he or she, individually or as a fiduciary, or [his/her] spouse or minor child residing in the judge’s household” has “an economic interest in the subject matter in question” (22 NYCRR 100.3[E][c])2 or “any other interest that could be substantially affected by the proceeding” (id.).
Mere acquaintance with a party due to residence in the same town or the same general neighborhood does not necessarily require disclosure or disqualification. In this regard, the referee’s obligations will depend on the “specific nature of the relationship” he/she has with the litigant (see Opinions 14-04; 11-125). Where the referee determines their social relationship is at an “acquaintance” level under Opinion 11-125, neither disclosure nor disqualification is required on this basis.3
The more significant issue here is whether decisions concerning certain local real property tax assessments could reasonably be seen as affecting the referee’s economic or other interests. This is necessarily a fact-specific determination (compare Opinion 10-151 [judge is not disqualified in a tax certiorari case merely because he/she resides in the town or school district where the tax refund is sought] with Opinion 18-103 [where judge resides on a privately owned street and has an ongoing relationship with other residents and the owner to pay for street maintenance and repair, the judge is disqualified in cases involving the owner and other residents]).
Changes in assessments of neighboring and similar properties may be a factor in the town board’s real property tax assessment. Thus, the tax assessment of the referee’s real property could potentially be impacted by his/her decisions concerning properties in the same neighborhood. Indeed, tax assessment reduction can have financial impact on a homeowner for an extended period as properties are taxed annually and assessments may stay in place for longer periods. We cannot say with certainty that the potential economic impact of an assessment review reducing the tax assessment of a property in the same neighborhood as the referee’s property owned would be de minimis.
Accordingly, the referee must disqualify him/herself in matters that involve pro se litigants from his/her neighborhood or any property in the town where a ruling might reasonably affect referee’s own real property assessment. Remittal is unavailable if any party is appearing without counsel.
However, if all parties are represented by counsel, and the referee concludes he/she can be fair and impartial, he/she may make full disclosure of the basis for disqualification on the record and allow the parties and their counsel to consider whether or not they wish to remit disqualification in the matter. The usual three-step process applies (see e.g. Opinion 20-22).
1 At one point, the referee’s spouse had informally contacted representatives of the board regarding assessment of their home, but they did not seek a formal review.
2 “Economic interest,” as relevant here, is defined as “ownership of a more than de minimis legal or equitable interest” (22 NYCRR 100.0[D]). In turn, the term “de minimis” is defined as “an insignificant interest that could not raise reasonable questions as to a judge's impartiality” (22 NYCRR 100.0[D]).
3 We note, however, that if any party is appearing without counsel, the mandatory disclosure or disqualification required for a “close social relationship” or “close personal relationship” will result in disqualification (see Opinion 11-125).