Opinion 89-95

September 12, 1989

Digest:         A town justice who hears cases involving alleged violations of town zoning ordinances, need not disqualify himself or herself from such cases merely because the justice’s son-in-law is chair of the zoning board of appeals, but is required to disqualify himself or herself if either the board or the son-in-law participated in the matter at any stage.

Rules:          22 NYCRR 100.2(a), 100.3(c)(I), Canons 3C, 3D

Opinion:

         A town justice inquires whether there is a conflict of interest requiring disqualification of the justice from hearing cases involving alleged violations of town zoning ordinances, because the justice's son-in-law is chair of the town zoning board of appeals.

         The Committee is of the opinion that the answer depends upon the relationship of the board and son-in-law to the matter coming before the justice.

         Section 100.2(a) of the Rules of the Chief Administrator of the courts requires a judge to “conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary”. Canon 3C of the Code of Judicial Conduct provides that “'a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....” See also 22 NYCRR 100.3(c)(i).

         In Opinions 87-17(b) and 88-34 we decided that a town justice need not disqualify himself or herself merely because the town is a party to litigation. Analogously, if there is no other indication of conflict or bias, the town justice is not disqualified in these cases merely because the son-in-law is chair of the town zoning board of appeals, provided that neither the son-in-law nor the zoning board of appeals is a participant in the proceeding before the justice and provided that the matter at issue before the justice was not previously passed upon or participated in by the son-in-law or the zoning board of appeals. However, if either the son-in-law or the zoning board of appeals participated in the matter at any stage, the recusal of the justice is required.