September 4, 2014
Digest: A judge may ethically delegate to a court clerk the function of researching whether or not a litigant’s address is located within a particular geographic boundary. However, the determination that the court does not have jurisdiction over a matter and that the filed papers may be refused or dismissed on jurisdictional grounds is a non-delegable judicial function.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(6)(c); 100.3(B)(7); 100.3(C)(1); 100.3(C)(2); Opinions 12-68; 12-25; 09-211; 08-208; 93-88 (Vol. XI); 89-142 (Vol. V); 1993 Ann Rep of NY Commn on Jud Conduct at 16-17, 57; 2003 Ann Rep of NY Commn on Jud Conduct 24-25.
A village justice asks about the propriety of delegating, to the court clerk, the function of determining whether an individual is subject to the court’s jurisdiction when a litigant wishes to file a small claim. The judge refers the Committee to a paragraph titled “Geographic Jurisdiction” in a court clerk training manual, which states that a defendant “must reside, work* or own a place of business within the municipality” in order for the court to exercise jurisdiction over the defendant, and suggests that a defendant’s listed mailing address may not be conclusive because “many local post offices deliver mail to communities outside the municipality’s legal jurisdiction.” If it is permissible to delegate this function to the court clerk, the inquiring justice further asks the Committee for advice on the “permissible means for a court clerk to determine jurisdiction for parties in a small claims matter,” and more specifically, whether the court clerk may review the tax rolls for this purpose.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Also, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B]); diligently discharge the judge’s administrative responsibilities (see 22 NYCRR 100.3[C]); and require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]).
The Committee has previously distinguished between “ministerial functions,” which may be delegated, and “judicial functions,” which are nondelegable (Opinion 12-25; see also Opinions 09-211 [“a judge may not delegate judicial decision-making”]; 89-142 [Vol. V] [“the judge is required to discharge his or her own judicial duties”]; 1993 Ann Rep of NY Commn on Jud Conduct at 16-17 [noting that an impartial and independent judiciary requires “a judge to exercise the powers of office without undue or unauthorized reliance upon non-judges”]).
Applying these principles, the Committee has advised that a judge must “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” (Opinion 89-142 [Vol. V]). Conversely, although judges have been disciplined for delegating the judicial function of examining bail bonds under CPL 510.40(3) (see 1993 Ann Rep of NY Commn on Jud Conduct at 57 [“it is the responsibility of the judge to ensure that a bail bond provides adequate protection that a defendant will return to court”]), the Committee has advised that a judge may nonetheless delegate the ministerial function of counting posted cash for bail to a court clerk, or an appropriate custodial or police official (see Opinion 93-88 [Vol. XI]). The Committee has likewise advised that, absent any legal or administrative prohibition against the practice, a town justice may delegate the ministerial function of receiving fine payments during the day when the court is closed to the elected town clerk (see Opinion 08-208).
Relatedly, the Committee has also advised that, although a judge may not delegate judicial decision-making, the judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities (see Opinion 09-211, citing Opinion 89-142 [Vol. V] and 22 NYCRR 100.3[B][c]).
In the present inquiry, the Committee believes that the function of researching whether a litigant’s address falls within a particular geographic boundary is a ministerial function which may be delegated to the court clerk. Thus, a clerk may search the address on municipal tax maps or tax rolls and convey the results of his/her search to the judge (see generally Opinions 09-211; 08-208; 93-88 [Vol. XI]; 22 NYCRR 100.3[B][c]).1
However, the determination as to the court’s jurisdiction in a particular case and whether the presented papers may be filed or refused on jurisdictional grounds is a non-delegable judicial function (see Opinion 89-142 [Vol. V] [finding a non-delegable duty where the judge’s signature “involve[s] an element of judicial discretion”). The judge is the public official vested with the power to make the actual jurisdictional determination, and may not adopt or authorize a procedure that appears to delegate, or in fact delegates, that responsibility to the court clerk (see Opinion 09-211 [when authorizing a law clerk to conduct conferences on pending matters, a judge “must ensure that he/she retains adjudicative responsibility and that the law clerk does not appear to be usurping the judge’s authority”]; see also 22 NYCRR 100.2; 2003 Ann Rep of NY Commn on Jud Conduct at 25 [noting that while court attorneys “should know better” than to “take the bench to conduct conferences, [make] express references to ‘my ruling,’ ‘my cases’ or ‘my decision,’ or otherwise convey the impression that they are the judges, ... it is the judge who is ultimately responsible”]).
Thus, although the inquiring judge may authorize the court clerk to inform the litigant factually of the search results and of all available options with respect to the papers the litigant has submitted for filing,2 the court clerk must not refuse to accept the papers or otherwise create the impression that he/she is making the jurisdictional determination or otherwise usurping the judge’s authority (see Opinion 09-211 [a judge “may authorize his/her law clerk to conduct conferences on a pending matter and to share with the parties the law clerk’s view about the case and issues involved,” but the law clerk “must make clear ... that the judge will make his/her own independent judicial decision regardless of the law clerk’s views]).
1 The Committee cannot comment on the relative merits of reviewing the tax rolls or municipal tax maps as compared with possible alternative methods of researching litigants’ addresses. In general, however, the method chosen should be legally permissible and consistent with the impartiality, integrity and independence of the judiciary (see generally 22 NYCRR 100.1; 100.2[A]).
2 For example, the court clerk might, to the extent legally permissible, offer the litigant an opportunity to file his/her papers without amendment, withdraw the papers and submit them elsewhere, or file new or amended papers (cf. Opinion 12-68 n 2 “any informational material a court furnishes to defendants must include information about all available options”]).