Does a New York town justice court clerk have to be a US citizen, or can a non-citizen long-term resident hold the position?

Plain-English summary

The Town of Lewis employed a court clerk who had been married to a U.S. citizen for 18 years, lived in the town that entire time, was classified as an ordinary clerk under civil service, and was a Canadian citizen. Her duties were typing, photocopying, posting mail, sending out fines and receipts, data entry into the court docket, and preparing bank deposits. The town attorney asked whether U.S. citizenship was required.

The AG's analysis turns on whether the court clerk is a "public officer" or a "public employee." Public Officers Law § 3(1) sets citizenship, state residency, and (for local offices) local residency as qualifications for "every public officer." If the court clerk is an officer, citizenship is required. If she is an employee, the qualification does not apply.

The distinction between an officer and an employee under New York law turns on whether the person exercises "sovereign powers" with independent discretion. Public officers are vested with portions of the government's sovereign powers; they exercise discretion in performing their duties. Public employees perform under direction, without independent discretion as to the mode of performance. The Matter of Dawson v Knox, 231 App Div 490 (3d Dept 1931), and a line of cases (MacDonald v Ordway, Macrum v Hawkins, Lake v Binghamton Housing Authority) provide the standard indicia: statutory designation as an office, required oath, required bond, definite term, official commission or seal, and a position created by statute or local law with statutorily prescribed duties.

Applying this to the Lewis court clerk: the position is established at the town board's discretion under Uniform Justice Court Act § 109; the board defines the terms of employment; the position is filled subject to the advice and consent of the town justice under Town Law § 20(1)(a). The clerk's actual duties are ministerial. She handles cash, but the town justice is individually accountable for the court's funds and operations. She does not exercise sovereign powers; she carries out duties under the justice's direction.

That makes her a public employee, not a public officer. The Public Officers Law § 3(1) citizenship requirement does not reach her.

The AG then handles two complications. UJCA § 111 requires "each non-judicial employee" of justice courts to take the oath of office and file a bond. Public Officers Law § 3(8) creates a residency carve-out for appointive non-judicial positions in state courts but expressly preserves residency for "those appointed to positions in courts for towns, villages and cities outside the city of New York." The AG reads those provisions as specific requirements for non-judicial court personnel that do not convert ministerial employees into public officers for purposes of § 3(1)'s citizenship qualification. Otherwise, every court secretary would be a public officer, which contradicts the substantive doctrine.

The AG closes with a constitutional flag: imposing citizenship on the clerk would conflict with the protections recognized in Cabell v Chavez-Salido, 454 US 432 (1982), which limits state citizenship requirements to positions involving the exercise of sovereign authority.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What makes someone a "public officer" under New York law?

The textbook factors: exercising a portion of the government's sovereign powers, with discretion as to how to perform the duty; created by statute or local law that prescribes the office's duties; statutory designation as an office; requirement of an oath of office, bond, or definite term; receipt of a commission or official seal. The decisive factor is the exercise of sovereign powers with independent discretion (Dawson v Knox, Haller v Carlson).

What is the distinction between sovereign powers and ministerial duties?

Sovereign powers involve decision-making authority over public business: judgments that bind the government and the public. Ministerial duties involve carrying out instructions: typing, filing, banking, processing receipts. A clerk who decides whether a small claim is admissible is exercising sovereign authority. A clerk who logs the filing into the docket is performing a ministerial duty.

Does the clerk's handling of cash from fines make her an officer?

No, on the AG's analysis. The town justice or justices are individually accountable for the court's funds and operations. The clerk handles cash under the justice's direction, with the responsibility resting on the justice. Cash-handling responsibility is significant but ministerial when it is performed under direction.

Does the oath requirement in UJCA § 111 make the clerk an officer?

No. UJCA § 111 requires non-judicial court employees to take an oath and file a bond. The AG reads that as a specific safeguard for court personnel that does not transform the office-versus-employment classification under Public Officers Law § 3(1). Otherwise the requirement that the clerk file a bond would self-defeatingly impose citizenship on every ministerial court employee.

What about Public Officers Law § 3(8) and residency?

§ 3(8) exempts most appointive non-judicial state court positions from the residency rule but preserves residency for positions in town, village, and city courts outside New York City. The AG reads § 3(8) as a discrete carve-out about residency, not as a back-door classification of all such positions as public offices. The statutory designations are specific to particular qualifications, not a wholesale incorporation into officer status.

How does Cabell v Chavez-Salido factor in?

Cabell is the federal constitutional case limiting state-imposed citizenship requirements to positions involving sovereign authority. The "political function" exception lets states require citizenship for officers exercising sovereign powers (police officers, deputy probation officers in Cabell itself), but not for routine public employees. A New York rule requiring a court clerk to be a citizen would be vulnerable under Cabell because the position does not involve sovereign authority.

Background and statutory framework

Public Officers Law § 3 sets out qualifications for holding public office in New York. § 3(1) requires citizenship, state residency, and (for local offices) local residency. § 3(8) provides a residency exception for appointive non-judicial positions in state courts, with the carve-out for town, village, and city courts outside New York City.

Uniform Justice Court Act § 109 leaves the establishment of court clerk positions to the discretion of the town board. § 111 requires non-judicial court employees to take an oath of office and file a bond conditioned on faithful performance. Town Law § 20(1)(a) provides for the town board to appoint such positions, subject to the advice and consent of the town justice or justices.

The public-officer-versus-employee doctrine traces through Dawson v Knox, MacDonald v Ordway, Macrum v Hawkins, and more recent cases (Lake v Binghamton Housing Authority, County of Suffolk v State of New York). The unifying test is the exercise of sovereign powers with independent discretion.

Cabell v Chavez-Salido, 454 US 432 (1982), sets the federal constitutional limit on state citizenship requirements, restricting them to positions involving sovereign authority under the "political function" exception to equal protection analysis.

Citations

• Public Officers Law § 3 (qualifications for public office).
• Public Officers Law § 3(1) (citizenship and residency requirement).
• Public Officers Law § 3(8) (residency exception with carve-out for non-NYC local courts).
• Town Law § 20(1)(a) (appointment of court clerk subject to advice and consent of town justice).
• Uniform Justice Court Act § 109 (establishment of court clerk positions).
• Uniform Justice Court Act § 111 (oath and bond requirement for non-judicial court employees).
• Matter of Dawson v Knox, 231 App Div 490, 492 (3d Dept 1931) (officer-employee distinction; sovereign powers test).
• Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973) (same).
• Matter of MacDonald v Ordway, 219 NY 328, 332 (1916) (statutory designation as office is an indicator).
• Macrum v Hawkins, 261 NY 193, 200-201 (1933) (oath, bond, definite term, commission as indicia).
• Matter of Lake v Binghamton Housing Authority, 130 AD2d 913 (3d Dept 1987) (office created by statute or local law).
• Matter of County of Suffolk v State of New York, 138 AD2d 815 (3d Dept 1988), affd, 73 NY2d 838 (1989) (same).
• Cabell v Chavez-Salido, 454 US 432 (1982) (federal constitutional limit on citizenship requirements).
• 1911 Op Atty Gen 452, 454 (early statement of officer-employee distinction).
• Op Atty Gen (Inf) Nos. 88-4, 91-49, 83-63 (related justice court personnel opinions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-48_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW § 3; TOWN LAW § 20(1)(a); UNIFORM JUSTICE
COURT ACT §§ 109, 111.
The clerk of a town justice court is not a public officer
and, therefore, is not required to be a citizen of the United
States.

October 23, 1997
David D. Scaglione, Esq.
Town Attorney
Town of Lewis
P. O. Box 309
Willsboro, NY 12996

Informal Opinion
No. 97-48

Dear Mr. Scaglione:
You have inquired whether an individual must be a citizen of
the United States in order to qualify for holding the position of
town court clerk. You have explained that the person currently
occupying the position of court clerk is a Canadian citizen who
has been married to a United States citizen for 18 years. She
has been living in your town during that period of time.
You have listed the functions of her position as typing
letters, photocopying, posting mail, sending out collected fines
and receipts, data entry into the court docket and preparing bank
deposits. Further, you have indicated that the clerk has taken
the civil service examination and has been classified as an
ordinary clerk. This classification occurred in 1989 and her
functions, as described above, have remained the same since that
time. You have suggested that the answer to your question may
hinge on whether the town court clerk qualifies as a public
officer.
Under section 3(1) of the Public Officers Law, among the
qualifications for holding a public office are the requirements
that the person be a citizen of the United States, a resident of
the State and, if the position is a local office, a resident of
that political subdivision or municipal corporation.
The characteristics of a public office as compared to a
position of employment have been defined. A determination as to
whether an appointee is an officer rather than an employee
requires a judgment whether the powers, duties, qualifications
and other characteristics of the job make him or her an officer
rather than an employee. The distinction between a public office
and public employment is not always clear. Matter of Dawson v

2
Knox, 231 App Div 490, 492 (3d Dept 1931). The duties of a
public officer involve some exercise of sovereign powers while
those of a public employee do not. Ibid.; Matter of Haller v
Carlson, 42 AD2d 829 (4th Dept 1973). The statutory designation
of a position as an office is some indication that the
legislative body intended to treat its occupant as a public
officer. Matter of MacDonald v Ordway, 219 NY 328, 332 (1916);
Matter of Haller v Carlson, supra, p 830. Other indicia of a
public office are the requirement to take an oath of office or
file a bond, appointment for a definite term and receipt of a
commission of office or official seal. Macrum v Hawkins, 261 NY
193, 200-201 (1933). A public office is created by statute or
local law and its powers and duties are prescribed by statute or
local law. Matter of Lake v Binghamton Housing Authority,
130 AD2d 913, 914 (3d Dept 1987); Matter of County of Suffolk v
State of New York, 138 AD2d 815, 816 (3d Dept 1988), affd, 73
NY2d 838 (1989).
In a prior opinion, we compared a public office to a
position of employment.
"Office" implies the obligation of a
portion of the sovereign powers to, and the
possession of it by, the person filling the
office; and the exercise of such powers
within legal limits constitutes the correct
discharge of the duties of such office. The
employee does not discharge independent
duties but acts by the direction of others.
The word "employee", used in a public sense,
does not signify an agent or one vested with
discretion as to the mode of performing his
duties. Where the relation is one of master
and servant we have the "employee", but the
words "public officer" suggest the relation
of principal and agent.
1911 Op Atty Gen 452, 454.
Therefore, it is clear that while there are several
characteristics of status as a public officer, a person may not
qualify as a public officer unless he or she exercises a portion
of the sovereign powers of government. Unlike an employee who
does not discharge independent duties but acts by the direction
of others, a public officer has discretion as to how he or she
performs his or her duties.

3
The establishment of the position of justice court clerk of
a town justice court is entirely in the discretion of the
governing body, the town board. Uniform Justice Court Act § 109;
Op Atty Gen (Inf) No. 88-4. The town board may establish the
position of clerk and determine the terms and conditions of
employment of that individual. In this case, you have indicated
that the justice court clerk occupies a competitive civil service
position. We note that the actual selection or discharge of a
justice court clerk is subject to the advice and consent of the
town justice or justices. Town Law § 20(1)(a).
Applying the standards for determining public officer
status, we conclude that your town justice court clerk is not a
public officer, and thus not subject to the citizenship
requirement of Public Officers Law § 3(1). In our view, the
clerk performs ministerial duties under the direction of the town
justice or justices. While the clerk has substantial
responsibility to account for large sums of cash from fines, fees
and forfeitures and exercises other responsible functions, the
town justice or justices are individually accountable and liable
for the large sums of cash collected and for ensuring that the
court functions properly. See, Op Atty Gen (Inf) No. 91-49.
Therefore, it is our view that the clerk does not perform
sovereign powers of government and, therefore, is not a public
officer.
We note that section 111 of the Uniform Justice Court Act
requires "each non-judicial employee" of justice courts to take
the oath of office prescribed by law and file a bond in an amount
set by the local legislative body, which is conditioned upon the
faithful performance of the duties of the position. Also, we are
aware of the provisions of section 3(8) of the Public Officers
Law, which states that the residency requirements of section 3(1)
are not applicable to appointive non-judicial positions in the
courts of the State "except those appointed to positions in
courts for towns, villages and cities outside the city of
New York". See also, Op Atty Gen (Inf) No. 83-63. In our view,
these provisions should not be construed to mean that
non-judicial positions in town courts are subject to all of the
qualifications for holding public office. These provisions
establish specific requirements for non-judicial positions in the
local courts. Otherwise, ministerial employees, such as the
court clerk, secretaries and others working for the town court
would be subject to public officer requirements, a finding
clearly inconsistent with the definition of public officer status
in opinions of this office and decisional law.

4
Further, a requirement that the town justice court clerk be
a citizen of the United States would be inconsistent with
established law protecting the rights of legal aliens. See,
Cabell v Chavez-Salido, 454 US 432 (1982).
We conclude that the clerk of a town justice court is not a
public officer and, therefore, is not required to be a citizen of
the United States.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions