Opinion 24-38
March 14, 2024
Digest: A town justice need not disqualify from cases involving tickets issued by his/her co-judge in the co-judge’s former capacity as a law enforcement officer.
Rules: 22 NYCRR 100.2; 100.2(A)-(B); 100.3(E)(1); 100.4(C)(2)(b); Opinions 17-31; 16-54; 14-81; 13-112; 12-154; 11-125; 09-117; 07-195/07-203; 98-18; 96-68; 94-110; 92-111; 88-83; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring town justice’s new co-judge is a retired law enforcement officer. There are numerous tickets currently on the court’s docket that were previously issued by the co-judge, some of which resulted in “scoffed” licenses, i.e. licenses suspended by the Department of Motor Vehicles for failure to pay a fine. The inquiring judge asks if it is ethically permissible to preside in matters involving tickets previously issued by his/her co-judge, including bench trials of such cases.[1]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).
Judges as Litigants
When a judge appears as a litigant in a matter, another judge must necessarily preside (see e.g. Opinions 16-54 [judge need not disclose or disqualify “solely because one defendant … is a judge in the same geographic region”]; 09-117 [judge may preside over tax certiorari proceeding brought by another judge from same district, but disclosure of “the full extent” of their relationship is “recommend[ed]”]; 07-195/07-203 [part-time attorney judge may “hear[] and decid[e]” a traffic infraction case in which the pro se defendant is another part-time attorney judge in the same county]; 96-68 [part-time attorney judge may preside in a small claims lawsuit where plaintiff is another part-time attorney judge in the same county]).
However, we have sometimes reached a different result when the presiding judge and the litigant both serve in the same two-judge court. In Opinion 13-112, the inquiring judge was a part-time town justice in a two-judge town court, and also a part-time village justice. We said the inquiring judge must disqualify in the village court from a summary proceeding brought by the other town justice on his/her own behalf, although we recognized the disqualification was subject to remittal.
In Opinion 94-110, while we thought a judge in a two-judge Family Court could preside in their co-judge’s adoption proceeding “[a]s long as the proposed adoption is uncontested,” we said the petitioner should proceed in the Supreme Court, rather than Family Court, if he/she anticipated it would be adversarial. We note, however, that Opinion 94-110 involves a factor not present here, as the inquiring judge was the petitioner in the planned adoption proceeding and could potentially commence such a proceeding either in Supreme Court or in Family Court.
We have also said an “acting village justice” in a two-judge court should disqualify in a criminal proceeding where “the village justice” is the complainant, due to the “public perception of possible preferential treatment” and the “appearance of impropriety” (Opinion 98-18; see also Opinion 88-83 [concluding that an “associate judge” is disqualified in a landlord/tenant case where the petitioner is the “presiding judge of that court,” who is “analogous to ‘the boss’” of the associate judge]). We recognize that Opinions 98-18 and 88-83 involve a factor not present here, in that the inquiring judge was seen as having a junior or subordinate position to the litigant-judge, within their two-judge court.
A Co-Judge’s Relatives as Litigants, Complainants, or Attorneys
We formerly mandated disclosure and/or recusal when the relative of one judge in a two-judge court appeared before the other judge (see Opinion 12-154 [reviewing and modifying prior opinions]). In Opinion 12-154, however, we advised that a judge in a two-judge court need not disclose or disqualify when his/her co-judge’s child appears as an attorney. In the process, we advised that “it is the nature and quality of the relationship between any two judges in one court that is the determining factor in resolving any appearance issue, rather than the simple number of judges in any given court” (id.). Since then, we have advised that a judge whose co-judge’s spouse appeared as a litigant “should consider his/her own relationship, if any, with the particular individual who is appearing before him/her as a party, using the general categories of social relationships set forth in Opinion 11-125 as a guide” (Opinion 14-81 [neither disqualification nor disclosure required due to mere acquaintanceship with co-judge’s spouse]). We likewise advised that neither disclosure nor disqualification were necessary in a criminal matter where the complainant was the inquirer’s co-judge’s adult child, with whom the inquiring judge had no relationship other than “purely ‘happenstance’ interactions” (Opinion 17-31).
Co-Judge as Witness
While our prior opinions do not provide a clear answer to the question before us, we have long recognized that “[o]ne purpose of having two judges is that one judge can hear cases in which the other judge is disqualified” (Opinion 92-111). We see no reasonable basis here to question the inquiring judge’s impartiality solely because a matter involves a ticket issued by his/her co-judge in the co-judge’s former capacity as a law enforcement officer (see 22 NYCRR 100.3[E][1]).[2] The inquiring judge should, of course, consider any social relationship he/she may have with the new co-judge using the categories set forth in Opinion 11-125 as a guide. Moreover, if the judge doubts his/her ability to be impartial in a particular case, the judge must not preside.
Otherwise, absent another reason for disqualification, we conclude the inquiring judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Thus, provided the judge concludes he/she can be fair and impartial, the judge may preside and evaluate his/her co-judge as a witness if necessary.
[1] While such matters are sometimes prosecuted by a law enforcement officer pursuant to authority delegated by the District Attorney, the co-judge would presumably appear (if at all) as a witness rather than as a prosecutor, as he/she cannot serve as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]).
[2] We note this is not a scenario where two co-judges might risk creating an appearance of an improper quid pro quo by presiding over cases involving each other’s interests.