Opinion 04-138

January 27, 2005

Digest:         Pursuant to Part 36 of the Rules of the Chief Judge, a part-time judge is not eligible for the judicial appointments set forth in section 36.1 of the Rules, unless such appointment falls into an exception provided for in section 36.1(b) which exceptions include uncompensated appointments.

Rules:          NYS Constitution, Art. 6, section 1(a); 22 NYCRR 36.1; 36.1(b); 36.2(b)(3); 36.1(c)(1); 100.6(B); Opinion 03-49.

Opinion:

         A part-time village justice who is permitted to practice law asks whether he/she is precluded from accepting certain judicial appointments pursuant to Part 36 of the Rules of the Chief Judge, if the appointments are without compensation.

         Part-time judges who also are attorneys may engage in the practice of law in accordance with section100.6(B) of the Rules Governing Judicial Conduct. While attorneys who practice law may be appointed to such positions as guardians, guardians ad litem, referees, etc., a judge or housing judge of the Unified Court System of the State of New York is ineligible for such appointments. 22 NYCRR 36.2(c)(1). Although town and village courts are not funded by the State of New York, and the justices of these courts are not employees of the State of New York, town and village courts are part of the New York State Unified Court System. NY Constitution, Article 6, section 1(a). Part-time attorney-judges who preside in these courts, therefore, may practice law in accordance with section100.6(B) of the Rules Governing Judicial Conduct, but are precluded from appointment to the positions governed by Part 36 of the Rules of the Chief Judge. Opinion 03-49.

         However, the Rules of the Chief Judge provide for exceptions to the prohibition, and specifically state that the prohibitions on such appointments do not apply when the appointment is without compensation. 22 NYCRR 36.1(b); 36.1(b)(3). Accordingly, so long as the appointment is made without compensation in full accordance with the provisions of Part 36 of the Rules, a village justice would be in compliance and may accept such appointments.