Opinion 23-135

December 14, 2023

Digest:  A town justice may commence an action against the town regarding a personal matter unrelated to the business of the court.  

Rules:   22 NYCRR 100.1; 100.2(A); 100.2(C), 100.4; 100.4(A)(1)-(3); Opinions 20-63; 18-139; 15-142; 12-41; 06-145; 93-05; 90-11.

Opinion:

          The inquiring town justice has discovered that an addition to the judge’s residence constructed by the prior homeowner is not compliant with the town’s building code.  The town had issued a certificate of occupancy for the addition that must be removed for health and safety reasons.  The judge now seeks compensation from the town, and understands that litigation may be required to establish legal liability and damages.  The judge inquires whether it is ethically permissible to sue the town.

          A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and must personally observe those standards so that the integrity and independence of the judiciary will be preserved (see 22 NYCRR 100.1).  A judge must respect and comply with the law and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).   A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and must conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4).  Thus, a judge’s extra-judicial activities must not be incompatible with judicial office and must not (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

          A sitting judge may bring an action in a court of competent jurisdiction on a matter in which the judge has a personal interest (see e.g. Opinions 90-11; 93-05).  When appearing as a litigant, a judge may appear with or without legal representation (see e.g. Opinion 12-41).

          A judge may be a litigant on a personal matter in a court of competent jurisdiction, including the town in which the judge presides.  In Opinion 15-142, a part-time town justice who was executor of an estate asked if it was ethically permissible to retain counsel to petition their town for approval of a subdivision of the beneficiaries’ property.  We concluded that, “[a]s the estate’s real property cannot be subdivided without approval from the appropriate town regulatory boards, plainly this judge may, as executor, retain counsel to petition the town to allow subdivision of the property” (id.).  While, in that case, the inquiring judge’s interest in the proposed litigation related to the judge’s obligations as executor, we find no ethical distinction in the instant inquiry, where the judge’s own direct property interest is at issue.

          While this judge did not specifically ask about their obligations in matters where town attorneys appear, we note that this issue was addressed in Opinion 15-142: “Provided the judge can be fair and impartial, the judge may preside when assistant town attorneys who do not participate in the town’s zoning and subdivision matters appear before the judge, and disclosure is not required.”  Where a town justice has filed a tax certiorari case in supreme court challenging the valuation of his/her property in the town and the town attorney is defending the town in Supreme Court, we advised that the judge is disqualified, subject to remittal, “from all matters in which the town attorney appears or in which the town itself is a party” (Opinion 18-139, modified by Opinion 20-63). 

          Finally, we remind the inquirer that, though the contemplated litigation is permissible, the judge may not lend the prestige of judicial office to advance their position and thus “should not invoke or volunteer [their] judicial title” in the proceeding (Opinion 06-145; 22 NYCRR 100.2[C]).