Opinion 21-54

March 11, 2021

Digest:         The Advisory Committee on Judicial Conduct cannot comment on whether Part 8 of the Rules of the Chief Judge precludes a county jury board from appointing or reappointing a jury commissioner whose spouse has assumed full-time judicial office within the same county.

Rules:          Judiciary Law §§ 212(2)(l); 502(C); 22 NYCRR 8.1; 8.2; 100.3(C)(3); 101.1.

Opinion:

         The inquiring judge is one of three officials designated to serve on the county jury board. The current jury commissioner’s term of office is expiring and the incumbent seeks reappointment by the board for another term. In the interim, however, the jury commissioner’s spouse has assumed a full-time judgeship in the same county. Accordingly, the judge asks whether Part 8 of the Rules of the Chief Judge prohibits this appointment. This provision consists of two paragraphs:

No person shall be appointed to a position in any state-paid court of the Unified Court System if he or she is a relative within the fourth degree of relationship, or the spouse of such relative, of any judge or the spouse of such judge of the same court within the county in which the appointment is to be made. The Appellate Division and Appellate Terms of the Supreme Court shall not be considered the same court as the Supreme Court for purposes of this Part (22 NYCRR 8.1).

This Part shall not apply to appointments to positions in the competitive class nor to persons who have held permanent appointments in positions in the Unified Court System prior to the effective date of this Part or prior to the relative becoming a judge (22 NYCRR 8.2).

While the Rules Governing Judicial Conduct specifically require that a judge comply with the requirements of Part 8 (see 22 NYCRR 100.3[C][3]), we also note that the county jury board and the position of jury commissioner are both creatures of statute. Of particular relevance here, Judiciary Law § 502(C) states:

The commissioner shall be an officer of all courts located in the county in which he acts and shall have authority to administer oaths or affirmations as to any matter relating to his duties under this article or the rules of the appropriate appellate division adopted pursuant thereto.

Therefore, we understand that the jury commissioner provides jurors to all the courts in the county, including (but not limited to) the specific court in which the commissioner’s spouse now serves.

         Here, the core issue is whether or not the jury commissioner, who serves as “an officer of all courts located in the county in which he acts” (Judiciary Law § 502[C]), will be appointed to “a position in” the same court where the current jury commissioner’s spouse now serves (22 NYCRR 8.1). This presents a legal and/or administrative question beyond the jurisdiction of this Committee to resolve (see Judiciary Law 212[2][l]; 22 NYCRR 101.1).

         In addition, we cannot comment on the ethical obligations of individuals other than the inquiring judge (see generally id.). Here, the inquiring judge is, in effect, seeking advice concerning the conduct of another individual (i.e. whether the jury commissioner may accept reappointment now that their spouse is a judge in the same county) and/or a separate multi-person entity that includes one or more non-judges (i.e. the jury board which serves as the appointing authority).

         We must therefore decline to answer this inquiry.