Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 2, #6©

Issue: May the NYS Attorney General's Office represent a town justice who is sued? 

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.

"In theory, there is no difference between theory and practice. But in practice, there is." 


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