Opinion 89-142

January 18, 1990

Digest:         A part-time town or village justice may appoint his/her spouse as court clerk provided that he/she obtains the prior permission of the Chief Administrator of the Courts. A part-time judge may not authorize the court clerk to sign his/her name in judicial discretionary matters.

Rules:          22 NYCRR 100.3 (b)(1) and (4)

Opinion:

         A part-time town justice inquires whether he/she may appoint his/her spouse as a paid court clerk where the proceedings of the court take place in the justice’s home. The justice also inquires whether the clerk may sign the justice’s name when he/she is not available.

         Section 100.3(b)(4) of the Rules of the Chief Administrator states a town or village justice may appoint a member of the justice’s household as clerk of the town or village court in which the justice sits, “provided that such justice obtains the prior approval of the Chief Administrator of the Courts, which may be given upon a showing of good cause”. Thus, with the appropriate approval, the part-time judge may appoint a spouse as court clerk. As the inquiring judge has previously appointed his/her spouse, the judge should apply for retroactive approval of this appointment.

         Section 100.3(b)(1) of the Rules of the Chief Administrator requires that, “a judge shall diligently discharge his or her administrative responsibilities, maintain professional competence or judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials”. As the judge is required to discharge his or her own judicial duties, the judge should 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.