Opinion 10-61

April 22, 2010

Digest:         A magistrates’ association should not permit representatives from a town clerks’ association to attend their meeting for the purpose of discussing the enforcement of dog regulations to “ensure consistency between the various towns.”

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(C)(1); 100.3(E)(1); Opinion 08-21; Joint Opinion 06-154 and 06-167; Opinions 94-31 (Vol. XII); 88-147 (Vol. III); 87-28(a) (Vol. I); Agriculture & Markets Law §§ 109, 119(2).

Opinion:

         The inquiring judge is an officer of a magistrates’ association. The judge asks whether he/she may permit a town clerks’ association to address the members of the magistrates’ association about the enforcement of dog regulations during an upcoming association meeting. The judge provided a copy of a letter from the town clerks’ association that describes the nature and purpose of their request as follows:

Recently the NYS Department of Agriculture and Markets informed the towns that there needs to be improvement in the enforcement of dog regulations. The Sheriff’s Department has agreed to assist in issuing and delivering Appearance Tickets for Failure to License a Dog. However, it appears that each individual town has determined their own method of processing these tickets. Some courts have dismissed the ticket if the licensing fee is paid, while others have not.

The Town Clerk[s] Association would like to be put on the agenda for a meeting in the near future for the purpose of discussing the enforcement of the dog regulations to ensure consistency between the various towns. Currently, each town seems to have their own interpretation of this process, and we believe there should be some commonality on how the law is enforced.

          A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must avoid impropriety and the appearance of impropriety in all his/her activities (see 22 NYCRR 100.2). Therefore, a judge 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]). In particular, a judge must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), must diligently discharge his/her administrative responsibilities without bias or prejudice (see 22 NYCRR 100.3[C][1]), and must refrain from improper ex parte communications relating to pending or impending proceedings (see 22 NYCRR 100.3[B][6]).

         By statute, town clerks are responsible for administering dog licensing ordinances (see Agriculture and Markets Law § 109; Opinion 88-147 [Vol. III]), while the town animal control officer is statutorily empowered to enforce those ordinances by prosecuting offenders in town court (see Agriculture and Markets Law § 119[2]; Opinion 88-147 [Vol. III]). In Opinion 88-147 (Vol. III), the Committee advised that a town justice may not assist a town clerk in obtaining compliance with dog licensing ordinances by contacting suspected offenders and informing them of possible violations of law.

In other instances, the Committee has concluded that it is improper for judges to attend training programs designed to “maximize enforcement” or enhance conviction rates (see Opinions 08-21; 94-31 [Vol. XII] [noting that the judiciary does not share the goal of enhancing the conviction rate of people accused of alcohol and drug-related vehicle and traffic crimes as part of its constitutional mandate]) or that are sponsored by law enforcement agencies solely to benefit law enforcement officials (see Opinion 87-28[a] [Vol. I]). For example, the Committee previously has advised that it would create an appearance of impropriety (see 22 NYCRR 100.2) and could reasonably call into question a judge’s ability to be impartial (see 22 NYCRR 100.3[E][1]) if members of a county magistrates association attend an educational program sponsored by a county probation department about implementing post-conviction polygraph testing for convicted sex offenders, if the program is intended solely to promote law enforcement goals and is not open to the defense bar as well as law enforcement officials (see Opinion 08-21), or if judges attend “training sessions” sponsored by a law enforcement agency “to maximize enforcement” (see Opinion 94-31 [Vol. XII]).

That the town clerk’s association wants to affect the way the judges process and adjudicate dog licensing matters raises the same concerns, and also could be perceived as an attempt to influence the judges ex parte with regard to pending or impending dog licensing cases that are, or may come, before them (see 22 NYCRR 100.3[B][6] [judge shall not initiate, permit, or consider ex parte communications concerning a pending or impending proceeding]).

Therefore, the inquiring judge should not permit the town clerks’ association to attend a magistrates’ association meeting for the purpose of discussing the enforcement of dog regulations to “ensure consistency between the various towns.”