Opinion 18-04(B)

March 29, 2018

Digest:         If permitted by governing law, regarding documents that require the judge’s signature and whose contents include elements of judicial discretion, it is ethically permissible for the judge to authorize a court clerk to affix the judge’s signature to the document, provided (1) the judge has not, in fact, delegated his/her judicial functions, but personally made the decision; and (2) the judge consents to the use of the signature stamp on that document.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(7); 100.3(C)(1)-(2); Opinions 16-55; 15-189; 15-127; 14-137; 89-142.

Opinion:

         A full-time judge presiding in a trial court of limited jurisdiction asks if he/she may allow a court clerk to use the judge’s signature stamp. If so, the judge asks for what purposes the stamp may be used.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply with the law” (id.). Further, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]); must diligently discharge his/her administrative duties, maintain professional competence in judicial administration, and cooperate with other judges and court officials in the administration of court business (see 22 NYCRR 100.3[C][1]); and must require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         Unless otherwise authorized by law, a judge may not delegate his/her adjudicative responsibilities (see e.g. Opinions 15-189; 15-127; 89-142). Thus, we advised in Opinion 15-127:

The Committee has distinguished between “ministerial functions,” which may be delegated, and “judicial functions,” which are nondelegable (Opinion 14-137; see also Opinions 09-211 [“a judge may not delegate judicial decision-making”]; 89-142 [“the judge is required to discharge his or her own judicial duties”]; 1993 Ann Rep of NY Comm. on Jud. Conduct at 16 [noting an impartial and independent judiciary requires “a judge to exercise the powers of office without undue or unauthorized reliance upon non-judges”]). Applying these principles, the Committee has advised that a judge must “personally sign all documents which require the judge’s signature and which involve an element of judicial discretion, and should not delegate that function to the court clerk” (Opinion 89-142). The Committee has advised that a judge may delegate the function of researching whether a litigant’s address is located within a particular geographic boundary, but not the determination of whether filed papers may be refused or dismissed on jurisdictional grounds (see Opinion 14-137); a judge may delegate the function of counting posted cash for bail, but not the determination of whether the bond provides adequate protection that a defendant will return to court (see Opinion 93-88); and a judge may authorize his/her law clerk to conduct conferences and to share with the parties the law clerk’s view about the case and the issues involved, but the law clerk must make clear that the judge will make his/her own independent judicial decision regardless of the law clerk’s views (see Opinion 09-211).

         On further consideration, we believe our advice that a judge must “personally sign all documents which require the judge’s signature and which involve an element of judicial discretion” (Opinions 15-127; 14-137; 89-142) may, in some circumstances, be unduly strict, especially if there is a compelling operational reason why the judge cannot personally sign the document.

         Clearly, the judge must retain full decisional authority on all nondelegable judicial functions. There may also be circumstances where applicable law requires the judge to sign certain documents personally (cf. Opinion 15-189 fn 1). But if there are circumstances where applicable law permits the judge to authorize another individual to affix his/her signature to the document, we hesitate to impose an ethical requirement that the judge sign the document personally.

         Accordingly, if permitted by governing law, regarding documents that require the judge’s signature and whose contents include elements of judicial discretion, we conclude it is ethically permissible for the judge to authorize a court clerk to affix the judge’s signature to the document, provided (1) the judge has not, in fact, delegated his/her judicial functions, but personally made the decision; and (2) the judge consents to the use of the signature stamp on that document.

         We caution the judge against over-reliance on the signature stamp, lest the judge be seen as improperly delegating his/her judicial duties. We also remind the judge to take reasonable steps to instruct and supervise the court clerk on proper use of the signature stamp to help minimize the risk of improper use.

         Finally, we emphasize that the judge must determine whether applicable law permits use of the signature stamp; we cannot pass on this legal question (see e.g. Judiciary Law § 212[2][l]). However, “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (Opinion 16-55).

         Opinions 15-127, 14-137, and 89-142 are modified to the extent inconsistent with this view.