Opinion: 98-81
January 29, 1999

Digest:    Whether a part-time acting village judge may be appointed a referee to supervise disclosure in the Supreme Court presents a legal question that the Committee declines to answer.

Rule:    N.Y. Const. Art. 6, §§20(b)(4),
            20(c); CPLR 4312(4);
            22 NYCRR 36.1; 36.1(b)(1); 100 et. seq.
            Opinions 97-131; 95-136 (Vol. XIII);
            93-98 (Vol. XI); 93-85 (Vol. XI).


            A part-time acting village judge, who is an attorney and a retired law secretary to two Supreme Court Justices, asks whether section 36.1 of the Rules of the Chief Judge (22 NYCRR 36.1), "prohibits my appointment as a referee to supervise disclosure pursuant to CPLR 3104(b)" in the Supreme Court. Such service would be compensated. The inquirer notes that he/she has received such appointments "with the consent of the parties based upon my 25 years of experience resolving disputes occurring during examinations before trial."

            Part 36 of the Rules of the Chief Judge deals with the appointment of guardians, guardians ad litem, court evaluators, attorneys for incapacitated persons, receivers, persons designated to perform services for a receiver and referees. With certain exceptions not applicable here, section 36.1(b)(1) bars the appointment to such positions of any person "who is a relative of, or related by marriage to, a judge of the Unified Court System of the State of New York, within the sixth degree of relationship." 22 NYCRR 36.1(b)(1).

            In a series of opinions, the Committee has stated that although Part 36 on its face refers only to relatives of judges, its rationale (i.e. avoidance of the appearance of nepotism or favoritism) requires an extension of the prohibition to judges themselves. See e.g. Opinions 95-136 (Vol. XIII), 93-98 (Vol. XI), 93-85 (Vol. XI). It is our understanding that the Office of Court Administration has adopted the same interpretation. Thus, in Opinion 95-136 (Vol. XIII), the Committee, in response to an inquiry by a part-time city court judge, asking whether it is permissible to accept appointments from judges of the Supreme Court and Surrogate's Court "as a court appointed Referee, Guardian, Conservator, etc." concluded that the inquirer could not accept appointment as guardian, guardian ad litem or conservator. However, the Committee went on to state that "as to serving as a referee in the Supreme Court, that presents a question of law which the Committee does not address." No elaboration was provided.

            That there may be a distinction between the appointment of a judge as referee and a judge in one of the other capacities specified in section 36.1, arises from the existence of section 4312(4) of the Civil Practice Law and Rules, and the interplay between that provision of law and the New York State Constitution. CPLR 4312(4) states:

        4.    A judge shall not serve as a referee in an
        action brought in a court of which he is a judge
        except by written consent of the parties and, in
        that case he cannot receive any compensation
        as referee.
        It appears, therefore, that there is an implicit statutory recognition of the permissibility of judges being appointed referees. Whether that recognition precludes an interpretation by this Committee of a Rule of the Chief Judge which would have the effect of rendering the CPLR provision meaningless, is, of course, a significant question. That is, there is no facial conflict between the statute and Rule 36.1, which, by its terms, applies only to relatives of judges. Clearly, a relative of a judge could not be appointed a referee. It does, however, call into question whether the expansion of the rule by this Committee may properly include a prohibition on the appointments of part-time judges, who are not relatives of an appointing judge, to the position of referee.

            Turning to the State Constitution, Article 6, §20(b)(4) bars almost all full-time judges from, among other things, serving as referees. Further, such judges "shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals." Part-time judges are governed by subdivision (c), which in pertinent part, reads as follows:

c.    Qualifications for and restrictions upon
the judges of district, town, village or city
courts outside the city of New York . . . shall
be prescribed by the legislature . . . Judges of
such courts shall also be subject to such rules
of conduct not inconsistent with law as may
be promulgated by the chief administrator of
the courts with the approval of the court of
            Thus, it appears that neither the State Constitution nor statutory law bars a part-time judge from acting as referee. On the contrary, as stated, a statute - CPLR 4312(4) - implicitly recognizes that part-time judges may serve as referees. And that statute itself constitutes a restriction upon part-time judges. It bars a judge from serving as a referee in his or her own court except upon consent and without compensation. That is a restriction "prescribed by the legislature," acting in accordance with its constitutional authority to do just that. N.Y. Const., Art. 6, §20(c). But there is no rule of the Chief Administrator barring a part-time judge from serving as a referee. That would also be an avenue of restriction contemplated by the Constitution, provided it is "not inconsistent with law."

            Accordingly, the overall question presented is whether a particular interpretation or expansion of a rule of the Chief Judge, i.e., Rule 36.1, which on its face does not bar such appointments, should be promulgated by this Committee in light of (1) a constitutional restriction on full-time judges that does not apply to part-time judges; (2) the existence of a statute that presumes a part-time judge may act as a referee and which simultaneously restricts such activity; and (3) the absence of a rule of the Chief Administrator barring part-time judges from acting as referees.

            The Committee does not believe it is the body to render such a determination. An attempt to do so in this instance, would require the Committee to engage in statutory, administrative and constitutional interpretation without benefit of the usual aids to courts in resolving such matters, e.g. arguments, briefs, etc. We note that no provision of the Rules Governing Judicial Conduct (22 NYCRR, Part 100), is directly implicated and conclude that an attempted resolution of the matter would take us far afield from our advisory role on matters of judicial ethics. Accordingly, for all the aforementioned reasons, the Committee declines to answer the question posed.