Opinion 17-73

May 4, 2017

Digest:         A village justice may not acquiesce to the combination of village court and village executive-branch clerical offices.

Rules:          Village Law § 4-400; 22 NYCRR 100.0(S); 100.1; 100.2(A); 100.3(B)(6)(c); 100.3(B)(8); 100.3(C)(2); Opinions 16-104; 14-114; 12-01; 10-120; 10-93; 09-205; 09-116; 08-99; 04-135; 99-104; 1983 Ops St Comp 83-174.

Opinion: 

         The inquiring village justice asks if he/she may permit the village to move the court’s offices from their present independent location into the village’s open, centralized clerical office within the village hall. The village anticipates that the court clerks will also assist other village clerical staff, and non-court village personnel will accept court fines and fees on behalf of the court clerks.

         A judge must uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). In addition, a judge “shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]).

         A village court is a separate and independent branch of government. It is distinct from the mayor, clerk, board and other village executive branch and legislative branch offices. Thus, in Opinion 99-104, the Committee advised that a village justice must not attend “monthly meetings of the village government’s department heads which are presided over by the Mayor.” As the Committee explained (id.):

The judge’s attendance at the monthly meetings would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor. Such a role would not only jeopardize the independence of the judiciary but would also give rise to an appearance of impropriety, contrary to the Rules.

            Similarly, the Committee advised that a village justice must prohibit the court clerk from attending the mayor’s regularly scheduled meetings with the village government’s department heads (see Opinion 16-104). The court clerk’s “attendance at such monthly meetings with the village department heads would similarly raise serious separation-of-powers concerns; it would create an appearance that the village court is part of the executive branch serving under the mayor’s direction and control” (id.). Although the mayor appoints the village court clerk “upon the advice and consent of the village justice” (Village Law § 4-400), an “attempt to compel attendance by court personnel, as if the court were part of the executive branch, would undermine at least the appearance, if not the reality, of judicial independence” (Opinion 16-104).

         We have said that a local justice could not authorize an executive branch officer or a village clerk to be the signatory on a court bank account (see Opinions 09-116; 04-135). The judge may not even permit a non-court employee to transport funds the court receives to the bank for deposit (see Opinion 10-93). Rather, such deposits must be made only by the justice or court personnel subject to his/her supervision and control (id.). Indeed, because a local justice is personally responsible for monies received by the justice court (see Ops St Comp, 1983 No. 83-174), the New York State Comptroller has further advised:

Fines, fees and other moneys payable to the Town Justice Court must be received by a Town Justice or by personnel under his or her supervision and control, and may not be collected by other town personnel in a centralized collection unit.

            The Committee also notes that the proposed arrangement, as described, raises practical concerns. For example, it could undermine the judge’s ability to speak confidentially with his/her court clerks¹ and could abolish existing security measures that help protect the integrity of court files and the safety of court personnel.²

         In sum, because the proposed arrangement infringes on judicial independence, this judge may not acquiesce to it (see generally Opinions 16-104; 99-104; 22 NYCRR 100.0[S]; 100.1; 100.2[A]; 100.3[C][2]).

            Should the village proceed with its plan to combine judicial and non-judicial village offices despite the justice’s objection, the justice must bring the situation to his/her supervising or administrative judge (see generally Opinions 09-205; 14-114). Once the judge has done so, he/she has no further obligation under the Rules Governing Judicial Conduct (see Opinion 14-114).

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            ¹ The rules permitting a judge to speak privately with “court personnel” about pending and impending cases do not encompass executive branch personnel, such as village clerical staff (see e.g. 22 NYCRR 100.3[B][6][c]; 100.3[B][8]).

            ² Court records are subject to “statutory provisions concerning confidential information, sealed records, and redaction of protected information” (Opinion 10-120), and a court’s security needs can be very different from those of other branches of government (e.g. Opinions 08-99 [court personnel may have inappropriately modified and deleted court records]; 12-01 [possible security threats arising from evidence admitted in a case]).