June 1, 2022
This responds to your inquiry (22-53) asking whether you may simultaneously hold the positions of town court clerk and town justice in the same two-judge, two-clerk town court. You currently serve as clerk to both justices, a position which you have held for more than 20 years.
On the facts presented, we conclude that the positions are incompatible. Given your long tenure as the judges’ subordinate, the practical reality is that, if you continue to hold the formal, paid position of town court clerk while also taking on the formal, paid position of town justice, it will be difficult, if not impossible, to avoid a public perception that you are “simultaneously [your] co-judge’s peer in [your] capacity as a judge; and [your] co-judge’s subordinate” in your capacity as a court clerk (Opinion 12-175). Thus, if you wish to assume the position of town justice, you must resign as town court clerk.
Enclosed for your reference are Opinions 17-58; 16-53; 12-175.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Appellate Division, Second Department