January 25, 2001
A part-time town court clerk whose spouse is the town's animal control
officer should be insulated from cases in which the spouse is a prosecuting
complainant in the clerk's court.
22 NYCRR 100.2(C);
Opinions 94-82 (Vol. XII); 99-72.
Two town justices inquire as to the propriety of hiring as the part-time assistant court clerk the spouse of the town's animal control officer. Primarily, the part-time clerk would cover in the absence of the full-time court clerk. The concern is that occasionally a citizen complains about a domestic animal creating a nuisance which may result in the control officer filing a complaint with the court. The full-time court clerk would ordinarily process such cases.
While the judges are not disqualified from hearing cases prosecuted by the spouse of the part-time court clerk, insulation of the clerk from cases in which his or her spouse is the complainant or prosecuting officer, is required. Such insulation would avoid the conveyance of any impression that any person is "in a special position to influence the judge," 22 NYCRR 100.2(C); see also Opinions 94-82 (Vol. XII); 99-72.