January 31, 2019
Digest: Whether a part-time town justice, who is also a US Air Force Reservist, may continue in office as judge while on extended military orders outside New York raises legal questions the Committee cannot address.
Rules: 38 USC §§ 4301-4335; Military Law §§ 242-243; 22 NYCRR 100.6(B)(4); Opinions 15-200; 02-03/02-17; 1999 Ops Atty Gen No. 99-37; US Dept of Defense Directive 1344.10.
The inquiring part-time town justice is an enlisted member of the US Air Force Reserves and does not hold a commissioned officer or warrant commission position. The judge has been placed on extended orders for more than nine months in another state, but will maintain his/her current New York residence and mailing address, continue to pay utilities, taxes and automobile insurance in New York, and return to his/her New York residence on weekends. On these facts, the judge asks if he/she may continue to serve as a town justice while on extended military orders. The judge intends to travel back to his/her town for court dates, trials and other official duties and return to his/her residence after the orders are completed.
A part-time judge may accept public employment in a federal department or agency, “provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B]).
We conclude the judge’s question is primarily a legal one, requiring the interpretation of various statutes, case law, and/or agency opinions or directives concerning the protections afforded military personnel under state and federal law (see e.g. 38 USC §§ 4301-4335; Military Law §§ 242-243), establishment of domicile (see e.g. 1999 Ops Atty Gen No. 99-37), and possibly other matters (see e.g. US Dept of Defense Directive 1344.10).
Such legal questions must be resolved before we can address the ethical propriety of holding both positions under Part 100 (see e.g. Opinions 15-200; 02-03/02-17).