Opinion 89-25

May 25, 1989

Digest:        A judge may not accept a gift or benefit of more than $50 in value for solemnizing a marriage outside the courthouse during non-court hours.

Rule:           Gen. Mun. L. §805-b; 22 NYCRR 100.5(c)(5).

Opinion:

           The question is posed whether a judge may accept an unsolicited gift or benefit of over $50 in value from the father of the bride for performing a wedding.

         Section 805-b of the General Municipal Law (GML) provides that no public officer listed in section 11 of the Domestic Relations Law (DRL) as authorized to solemnize a marriage shall be “prohibited from accepting any gift or benefit having a value of fifty dollars or less, whether in the form money, property, services or entertainment, for the solemnization of a marriage by such public officer at a time and place other than the public officer’s normal place of business, during normal hours of court.”* Section 11 of the DRL states that a marriage shall not be valid unless solemnized by, inter alia, “a justice or judge of a court of the unified court system.”

         Pursuant to GML §805-b a judge who solemnizes a marriage outside the courthouse during non-court hours may accept a gift of up to $50. The inquiring judge notes that the statute does not place an express upper limit on the amount of any gift received for solemnizing marriage, leaving a question whether it implies that $50 is the upper limit. In the Committee’s opinion, the clear implication of the statutory provision is that it is unethical for any judge to accept a gift or benefit over $50 in value for solemnizing a marriage.

         Immediately prior to enactment of GML §805-b, all judges were prohibited by the Rules of Judicial Conduct from accepting any gift for solemnizing marriages [former 22 NYCRR 100.5(c)(5)]. Repeal of the rule that prohibited the acceptance of any gifts by judges for performing wedding ceremonies was decided upon by the Chief Administrator of the Courts, with the approval of the Court of Appeals, effective December 2, 1983, in light of the enactment by the Legislature in that year of Section 805-b GML...

          Although it is not the practice of the Committee to advise on questions of law, we note that Section 200.35 of the Penal Law makes it a Class A misdemeanor for any public servant to solicit or accept any gift for engaging in official conduct which such public servant was authorized to perform and for which such public servant was not entitled to any special or additional compensation. While GML 805-b would appear to be a modification of the Penal Law provision, that modification would seem to be only to the extent specified in GML 805-b.

* Please note that General Municipal Law §805-b has been amended to provide that “no public officer listed in section eleven of the domestic relations law shall be prohibited from accepting any fee or compensation having a value of one hundred dollars or less, whether in the form of money, property, services or entertainment, for the solemnization of a marriage by such public officer at a time and place other than the public officer's normal public place of business, during normal hours of business.” Gen. Mun. L. §805-b (2007) (emphasis added).