Opinion 08-172

September 11, 2008

NOTE: This opinion has been modified to the extent inconsistent with Opinion 16-162. See footnote 2 of Opinion 16-162 for details.

Digest:         A part-time town justice may also serve as a court clerk in the Supreme and County Courts in the same county where the town justice presides. As a court clerk in the Supreme and County Courts, the town justice must be insulated from any involvement in matters that are appealed from his/her town court to the County Court.

Rules:          Criminal Procedure Law §§10.30; 10.10(3); 10.30(1); 180.10; 180.30; 180.70(1); article 200; 22 NYCRR 50.3(a); 100.2; 100.2(A); 100.3(E); 100.6(B)(4); Joint Opinions 07-78/07-121; 07/62/07-69; Opinions 07-194; 00-12 (Vol. XVIII); 99-133 (Vol. XVIII); 95-111 (Vol. XIII); 92-115 (Vol. X).

Opinion:

         A part-time town justice asks whether it is ethically permissible for him/her to also serve as a court clerk for the Supreme and County Courts in the same county where he/she presides.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all the judges activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

          The Committee previously has advised that a part-time town justice may serve as the court clerk of the town court of an adjoining town (see Joint Opinion 07-62/07-69) but must heed section 100.3(E) and other relevant sections of the Rules Governing Judicial Conduct to determine whether disqualification is necessary in a particular case (see 22 NYCRR 100.3[E]). Applying these relevant sections, the Committee also has advised that a part-time town justice may simultaneously serve as a legal secretary to a county court judge in the same county where the part-time town justice presides, but should not participate as a legal secretary in any appeal of a case in which he/she presided as a town justice (see Opinion 95-111 [Vol. XIII]). In addition, a county court judge’s full-time law clerk may serve as a town justice as long as the law clerk will be insulated from the small number of appeals from the town court that are heard in the county court (see Opinion 99-133 [Vol. XVIII]); a part-time acting city court judge may serve as a part-time law clerk to a county court judge in the same county where he/she presides where any appeals of the law clerks actions in city court will be referred to the other county court judge or, if not so referred, the law clerk will be insulated from any such appeals (see Opinion 92-115 [Vol. X]); and a part-time city court judge may serve as a full-time court attorney for a county court judge in the same county where he/she presides provided the law clerk is insulated from any city court cases appealed to the county court and the county court judge discloses such insulation to the parties involved in such appeals (see Opinion 07-194).

         It is the Committee’s view, therefore, that the inquiring part-time town justice may also serve as a court clerk for the Supreme and County Courts in the same county where he/she presides. As was the case in the Committee’s prior opinions cited above, the part-time town justice must be insulated from any involvement as a court clerk for the Supreme and County Courts in a town court matter that is appealed to or otherwise referred to such courts for review.

         However, the part-time town justice need not be insulated from involvement in a case that was divested to the superior court after he/she exercised preliminary jurisdiction. For example, a town or village justice court is a local criminal court (see Criminal Procedure Law §10.10[3]) with trial jurisdiction of all offenses other than felonies (see id. §10.30[1]). A part-time town or village justice, therefore, is only authorized to arraign a defendant charged with a felony and to thereafter conduct a preliminary hearing unless such hearing is waived (see id. §§10.30;180.10; 180.30). If the defendant waives a preliminary hearing or if the felony charge survives the proceedings in the local criminal court, the town or village justice must send the case to the superior court for further proceedings (see id. §§180.30; 180.70[1]). The superior court does not review the prior proceedings in the case, but instead continues its adjudication (see Criminal Procedure Law Article 200). In these circumstances, therefore, the part-time town justice who also serves as a court clerk for the County and Supreme Courts need not be insulated from the case (see Opinion 07-194; cf. Joint Opinion 07-78/07-121).

         While the Committee sees no ethical impropriety should the inquiring part-time town justice also serve as a court clerk for the County and Supreme Courts in the same county where he/she presides, the inquiring part-time town justice should also obtain the written consent to do so that is required pursuant to the Chief Judge’s Rules governing dual employment by Court System employees (see 22 NYCRR 50.3[a]; Opinion 00-12 [Vol. XVIII]).