Improper Delegation of Judicial Authority to Court Attorneys and Others
It is fundamental to independence, impartiality and integrity of the judiciary for a judge to exercise the powers of office without undue or unauthorized reliance upon non-judges. In a number of cases over the years, judges have been disciplined for actually or effectively ceding certain uniquely judicial functions and duties to others.
In Matter of Greenfeld, 71 NY2d 389 (1988), a village justice was removed from office for, inter alia, improperly permitting the deputy village attorney to perform judicial duties in certain cases, including accepting guilty pleas and determining the amount of fines.
In 11 admonitions reported in its 1993 Annual Report, the Commission identified an improper practice in which town and village court justices in Cayuga County permitted the local sheriff’s office to review and approve bail bonds and sign the judges’ names to certificates of release from incarceration, without review by the judges.
In Matter of Rider, 1988 Annual Report, a town justice was censured for permitting the local prosecutor to prepare the judge’s decision, without notice to the defense.
In Matter of Hopeck, 1981 Annual Report, a town justice was censured for, inter alia, allowing his wife to preside over a series of traffic cases on an evening when the judge himself was unavailable.
From time to time, the Commission has also become aware of situations in which judges have delegated authority to court attorneys or law clerks to act in a manner that creates the appearance that they are judges. While it is not uncommon or inappropriate for a judge to ask a court attorney to conduct conferences with the lawyers or parties in a case and make recommendations, at times such assignments constitute improper delegations of judicial authority. Some court attorneys take the bench to conduct conferences, or have made express references to “my ruling,” “my cases” or “my decision,” or otherwise convey the impression that they are the judges. Some have acted in a manner that encourages lawyers and parties to call them “Your Honor” or “Judge.”
While a court attorney should know better than to foster such an appearance, it is the judge who is ultimately responsible. A judge is obliged not only to safeguard the independence and integrity of the judiciary but also to “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…” Section 100.3(C)(2) of the Rules Governing Judicial Conduct.
In one situation that recently came to the Commission’s attention, a Family Court Judge permitted a law clerk (or court attorney) to perform quasi-judicial acts, such as advise pro se litigants of the right to counsel. In another situation, the Appellate Division, Third Department, held that it was “clearly improper” under law for a judge to appoint his law clerk as a referee in a contested matrimonial proceeding. Carpenter v. Carpenter, 278 AD2d 695 (3d Dept 2000).
From the 2003 Annual Report, pages 24-25.