Opinion 88-147

December 8, 1988

Topic:          Propriety of town justice communicating with owners of unlicensed dogs to obtain compliance with town licensing ordinance.

Digest:         A town justice may not assist a town clerk in obtaining compliance with dog licensing ordinances by communicating with suspected offenders and informing them of possible violations of law.

Rules:          22 NYCRR 100.3(c)

Opinion:

         The question presented is whether a town justice may contact individuals who may have unlicensed dogs to advise them of possible consequences of violating town ordinance.

         By statute, town clerks are responsible for administering dog licensing ordinances. The town animal control officer is statutorily empowered to enforce those ordinances by prosecuting offenders in the town court. The inquiring justice has been requested by the town board and clerk to assist in the enforcement of the ordinances by communicating by mail and telephone with suspected offenders to inform them of the consequence of failing to obtain the necessary licenses.

         Judiciary Law section 14 provides in part that a judge may not participate in any proceeding to which he is a party. Section 100.3 of the Rules of the Chief Administrator entitled “Impartial and diligent performances of judicial duties” provides in subdivision (c) that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including but not limited to circumstances where: (i) the judge has ... personal knowledge of disputed evidentiary facts concerning the proceeding.”

         Should the judge comply with the town board's request, he would, in effect, be engaged in enforcement of an ordinance far which violators could be prosecuted in his court, placing him in the simultaneous contradictory postures of party and judge. Moreover, judges should not use the prestige of their judicial office for nonjudicial purposes. Accordingly, the judge's communicating with possible offenders of the town's dog licensing ordinances is incompatible with his judicial duties and is not permissible.