Joint Opinion 10-43 and 10-44

March 10 -11, 2010

Digest:         (1) A part-time town justice may be a named plaintiff in the town’s insurer’s lawsuit against criminal defendants whose cases are pending in the same court where the judge presides and also may initiate his/her own lawsuit against the same defendants concerning their conduct as it relates to the town court criminal cases. (2) A judge whose court clerk is a named plaintiff in the town’s insurer’s lawsuit against criminal defendants whose cases are pending in the judge’s court need not disqualify him/herself from such cases as long as he/she can be impartial, but should insulate the court clerk from any involvement in the cases.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 08-172; 00-123 (Vol. XIX); 98-69 (Vol. XVII); 96-85 (Vol. XIV); 90-103 (Vol. VI); 88-54 (Vol. II).

Opinion:

         Two part-time Justices who serve in the same municipality write separately regarding several criminal matters pending in their court. Two defendants are charged with violations of the Penal Law and are subjects of outstanding bench warrants. The defendants have unsuccessfully pursued numerous collateral applications to state and federal courts against the judges, both personally and in their judicial capacities, attempting to divest jurisdiction from the town court to other courts. One unsuccessful applicant has a pending appeal. In addition, the criminal defendants have filed liens with the Secretary of State for several billion dollars against one of the inquiring judges and against the other inquiring judge’s law clerk.

         According to one inquirer, the Town Attorney has notified both judges that the town’s insurer will file actions in federal court charging the defendants with prima facie tort, abuse of process and violating the Racketeer Influenced and Corrupt Organizations Act. The same inquirer, who has disqualified him/herself from the criminal actions pending against the defendants, asks whether he/she can, as a sitting judge, be a named plaintiff in the insurer’s action seeking compensatory damages, punitive damages and injunctive relief when the complaint includes factual representations concerning the cases pending in town court against the two defendants. If the Committee determines that the judge cannot be a named plaintiff in the town’s lawsuit, the judge asks whether he/she can institute his/her own action against the defendants to vacate the liens the defendants filed against him/her.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s 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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge may bring a lawsuit in any court of proper jurisdiction (see Opinion 90-103 [Vol. VI]). The fact that the lawsuit involves criminal defendants appearing in the same court where the judge presides does not preclude him/her from doing so. Therefore, the first inquiring judge may be a named plaintiff in the town’s insurer’s lawsuit against the criminal defendants whose cases are pending in the same court where the judge presides and also may initiate his/her own lawsuit against the same defendants.

         According to the second inquiring judge, the town’s insurer also has included his/her court clerk as a named plaintiff in the federal law suit against the defendants, and the defendants have filed liens against his/her court clerk as well. Therefore, the judge asks whether he/she can preside in the criminal actions pending against the defendants.

         The Committee previously has advised that a judge need not disqualify him/herself from a case in which the plaintiff commenced an action in Federal Court alleging that the judge has violated his/her civil rights in connection with the state court action (see Opinions 98-69 [Vol. XVII]; 88-54 [Vol. II]). And, in circumstances where the judge’s court clerk is related to an attorney or law enforcement officer who appears in the court or has some other connection to a case pending in the judge’s court, the Committee has advised that the judge need not disqualify him/herself from such cases if he/she can be impartial, but should insulate the court clerk from the case (see Opinion 00-123 [Vol. XIX] [part-time town court clerk whose spouse is the town's animal control officer should be insulated from cases in which the spouse is a prosecuting complainant]; Opinion 96-85 [Vol. XIV] [judge who sits in both County Court and Surrogate’s Court is not disqualified from presiding in matters pending in those courts when an attorney, who is married to the Chief Clerk of Surrogate’s Court, appears on behalf of a client, provided that the judge insulates the chief clerk from such matters]; see also Opinion 08-172 [part-time town justice may also serve as court clerk in the Supreme and County Courts in the same county where the town justice presides but the presiding judge must insulate him/her from any matters that are appealed to the court from his/her town court]). Similarly, the second inquiring judge whose court clerk is a named plaintiff in the town’s insurer’s lawsuit against criminal defendants whose cases are pending in the judge’s court need not disqualify him/herself from such cases as long as he/she can be impartial, but should insulate the court clerk from any involvement in the cases.