March 10, 2022
Digest: A part-time judge may not serve as an assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act.
Rules: 22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinions 21-184; 20-123; 20-28; 16-167; 16-32; 07-163; 06-98; 01-20; 00-04.
A part-time village justice, who is permitted to practice law, asks if they may accept employment as an assistant attorney general in the sex offender management bureau. The work involves handling Mental Hygiene Law article 10 cases before full-time judges. The petitioner is the State of New York and the respondent is an inmate who is classified as a recidivist sexual offender at the end of their criminal sentence and who is facing civil confinement under the Sex Offender Management and Treatment Act. Under the Act, the most dangerous offenders may be confined in the custody of the state’s mental health office at a secure treatment facility, while other offenders may be managed in the community through a regimen of strict and intensive supervision and treatment under the auspices of the state’s parole division. The state must prove by clear and convincing evidence that the respondent is a sex offender suffering from a mental abnormality. If the respondent is found to have those conditions, then the trier of fact decides whether the respondent is dangerous and needs confinement or may be released to strict and intensive supervision and treatment. Although the cases are civil in nature, the respondent is entitled to an attorney. According to the judge, an assistant attorney general in this position would sometimes need to contact parole or other agencies to discuss past offenses.1 Finally, we understand the Attorney General’s office does not appear in the village court, and there is no suggestion that a village justice has any role in adjudicating sex offenses that would require confinement.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may practice law (see 22 NYCRR 100.6[B]-) and may accept public employment if compatible with judicial office and if it does not “conflict or interfere with” proper performance of the judge’s duties (22 NYCRR 100.6[B]).
Where a part-time judge’s proposed concurrent public employment does not involve law enforcement or prosecutorial functions and is not likely to involve the judge with persons or agencies that regularly appear before the judge, it is often permissible (see e.g. Opinion 20-123 [legal assistant at the appeals and opinions bureau of the attorney general’s office]).
However, a part-time judge must not simultaneously serve in a position involving prosecutorial or quasi-prosecutorial responsibilities, even in another jurisdiction (see e.g. Opinions 21-184 [animal control officer in another municipality]; 16-167 [federal prosecutor]; 07-163 [special prosecutor in another county]; 01-20 [assistant district attorney in another county]; 00-04 [town building inspector/code enforcement officer]). We have said that a part-time attorney judge may also serve as assistant county attorney, provided that their duties as assistant county attorney do not involve “quasi-prosecutorial duties, such as handling juvenile delinquency or person-in-need-of supervision cases” (Opinion 06-98). As we explained (id. [citations omitted]):
By definition, juvenile delinquents are persons who have “committed an act that would constitute a crime if committed by an adult,” and persons-in-need-of-supervision proceedings may involve matters such as being taken into custody, detention, placement and related questions that are akin to possible issues in criminal proceedings. It is our view that a judge should not be in the position of prosecuting such cases.
Indeed, we have taken “a reasonable layperson’s perspective” in analyzing whether proposed outside employment would be “too closely aligned with law enforcement interests” (Opinions 20-28 [part-time assistant counsel position with Division of Criminal Justice Services]; 16-32 [part-time in-house counsel to sheriff’s office]).
In this matter, the work of an assistant attorney general prosecuting civil confinement matters, while legally cast in a civil context, has many aspects of a quasi-criminal proceeding. While serving as the Attorney General’s representative in a case under the Act, the attorney advocates restrictions on the respondent’s freedom and constitutional rights. In doing so, the attorney will argue that clear and convincing evidence supports the Attorney General’s determination that continued civil management of the respondent is required “upon the expiration of their criminal sentence” (https://ag.ny.gov/bureau/sex-offender-management-bureau-somb [visited 4/15/2022]). The attorney will be required to prove that the respondent has a mental abnormality and then establish whether the respondent is so dangerous as to require confinement or whether they may be managed in the community under strict and intensive supervision and treatment. Indeed, the sex offenders in these proceedings are subject to outcomes that are equivalent to those discussed in Opinion 06-98.
As we have advised that a part-time judge should not serve as a county attorney in proceedings that may involve “custody, detention, placement and related questions that are akin to possible issues in criminal proceedings” (Opinion 06-98), the inquiring judge here likewise should not handle petitions for civil confinement or extended government supervision. The inquiring judge must choose which role to perform: the judge cannot ethically perform both.
1 The bureau’s website also indicates that it “works in concert with the Article 10 partners, the Office of Sex Offender Management within the Division of Criminal Justice Services, NYS Department of Community and Correctional Services, NYS Office of Mental Health, and the NYS Office of People with Developmental Disabilities to develop state wide protocols to further the goals of Article 10 in ensuring public safety” (https://ag.ny.gov/bureau/sex-offender-management-bureau-somb [visited 4/15/2022]).