JUDGES are usually not litigants; rather, they oversee the cases
that come before their court. But on occasion, it is necessary to name a
judge as a party. In the criminal context, for example, an attorney may
bring an Article 78 proceeding in the nature of a writ of prohibition,
naming the judge as a party respondent. When this occurs, who represents the
judge?
Usually, the New York State Attorney General provides legal representation
for judges. See CPLR 7804(i). But is that true for town justices? Let's
examine this area a little more closely.
Section 7804(i), "Appearance by judicial officer," states in part: "Unless
otherwise ordered by the court upon application of a party the respondent
justice, judge, referee or judicial hearing officer need not appear in the
proceeding in which case the allegations of the petition shall not be deemed
admitted or denied by him. Upon election of the justice, judge, referee or
judicial hearing officer not to appear, any ruling, order or judgment of the
court in such proceeding shall bind said respondent. If such respondent does
appear he shall respond to the petition and shall be entitled to be
represented by the attorney general."
The statute's reference to "justice, judge, referee or judicial hearing
officer" is seemingly inclusive. But does "justice" refer to a state supreme
court justice, a town court justice (of the peace), or both?
It should be noted that a town court justice is not a state employee, but
is employed part-time by the particular municipality. Should the town
attorney be responsible for defending the town justice in an Article 78?
If a town justice were to commit a tort during the course of employment, is
the state or the municipality legally responsible to defend and be
financially liable? The State of New York may have reason to avoid legal
responsibility. For other civil suits, the municipality provides
representation. See Cunningham v Aetna Cas. & Sur. Co., 125 AD2d 950,
510 NYS2d 347 (4th Dept 1986).
On the other hand, it should also be pointed out that justice courts are now
part of the unified court system. New York Constitution, article 6, sec. 1;
Handling a Criminal Case in New York, sec. 1:28 (1999-2000 edition).
At the time the CPLR was enacted, these courts were not.
When a judicial officer is to be sued in an article 78 proceeding, process
must be served upon the respondent judge as well as the attorney general.
CPLR 7804(c); Handling, sec. 22:9. So, to be sure that jurisdiction
is obtained over a judicial officer, the AG's office should be served. But
after the parties have appeared, it may be worthwhile to consider moving to
disqualify the NYS Attorney General's office as counsel for the town
justice.
There is no reported case law directly on point.
QUOTATION:
"In theory, there is no difference between theory and practice. But
in practice, there is."
Anon.
Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.
Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.
Gary Muldoon
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