September 4, 2014
Digest: A full-time city court judge who presides outside the City of New York may become a notary public.
Rules: NY Const, art VI, §§20(b), 26(j)(2); Judiciary Law §212(2)(c); 22 NYCRR 100.2(A); Opinions 14-109; 13-111; 09-148; 03-129; 03-42; 90-32 (Vol. V); 98-99 (Vol. XVII); Dworsky v Farano, 41 NY2d 780 (1977).
The inquiring full-time city court judge, who presides in a city court outside the City of New York and has also been administratively designated as an acting county court judge (see NY Const, art VI, § 26(j)(2); Judiciary Law § 212[c]), asks whether he/she may become a notary public.1
A judge must respect and comply with the law, and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).
The Committee has advised that there is nothing intrinsically unethical in a judge serving as a notary public, particularly in light of the authority otherwise given to judges to take oaths and acknowledgments (see Opinion 03-129).
However, the Committee has also advised that a judge who is legally prohibited from holding another public office or public trust pursuant to Article VI, Section 20(b)(1) of the New York State Constitution may not serve as a notary public (see Opinions 14-109; 13-111; 03-129 [citing case law]). The Committee has further observed that “the Constitutional provision in question refers to a ‘judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York’” (Opinion 13-111 fn1, quoting NY Const, art VI, §20[b]). On its face, the Constitutional prohibition does not include city court judges who preside in courts outside the City of New York (see Dworsky v Farano, 41 NY2d 780 ; Opinion 90-32 [Vol. V]), and the Committee is unwilling to extend the prohibition as a matter of ethics to encompass a duly elected or appointed city court judge who is currently serving in county court by administrative designation.
Thus, the Committee sees no ethical impropriety if the inquiring city court judge also holds the office of notary public and, in that capacity, authenticates signatures affixed to petitions nominating him/her as a candidate during his/her window period for election to judicial office to the extent permitted by law (see Opinions 03-42; 98-99 [Vol. XVII]; 90-32 [Vol. V]).
1 The judge, who is in his/her window period, wishes to carry a petition for signature by voters enrolled in a different political party from the judge, which would designate the judge as a candidate for that party’s nomination in the upcoming primary election. The judge states that the status of a notary public, if ethically permitted, would enable him/her to witness signatures on such designating petitions. The Committee has previously advised that a judge or non-judge candidate for elective judicial office may, during the applicable window period, circulate his/her own individual nominating petition (see Opinion 09-148) and may also circulate joint petitions which include the judge’s name as a nominee (see Opinion 03-42).