Opinion 15-127

September 10, 2015


Digest:         A judge may not, by court order, delegate to a court clerk the authority to impose a pre-determined fine for traffic infractions.


Rules:          Criminal Procedure Law § 170.10; Vehicle and Traffic Law § 1805; 22 NYCRR 100.2; 100.2(A); 100.3(B); 100.3(B)(7); 100.3(C)(1)-(2); Opinions 15-34; 14-137; 09-211; 93-88; 89-142; Matter of Greenfeld, 71 NY2d 389 (1988); 2015 Ann Rep of NY Commn on Jud Conduct at 166, 183; 1993 Ann Rep of NY Commn on Jud Conduct at 16; 1981 Ann Rep of NY Commn on Jud Conduct at 136.



            A supervising judge asks whether judges who report to him/her may, by means of a standing court order, delegate to their court clerks the task of accepting written guilty pleas and payments of fines and surcharges, based on specific judicial guidelines created and approved by the judge in the form of a “fixed schedule” of fines. These judges preside in municipalities where there is no traffic violations bureau or agency. As a result, motorists who seek to plead guilty and pay their fines must appear in court before a judge when court is in session. The standing judicial order would direct the court clerk to accept a guilty plea where the motorist wishes to plead guilty to an enumerated traffic infraction and pay a fine according to a specific fee schedule set by the judge. As proposed, the court clerk would simply apply that order to an individual case, in a ministerial fashion, without further judicial review; the clerk would not have any discretion to deviate from the fixed schedule set forth in the order; and the motorist would remain free to reject the process and appear personally before the court. The inquiring judge asks whether the proposed procedure is an ethically permissible way to increase efficiency and preserve judicial resources in Vehicle and Traffic Law matters.1

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]); diligently discharge his/her administrative responsibilities (see 22 NYCRR 100.3[C][1]); and require staff, court officials and others subject to the judge’s direct and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).


         The Committee has distinguished between “ministerial functions,” which may be delegated, and “judicial functions,” which are nondelegable (Opinion 14-137; see also Opinions 09-211 [“a judge may not delegate judicial decision-making”]; 89-142 [“the judge is required to discharge his or her own judicial duties”]; 1993 Ann Rep of NY Commn on Jud Conduct at 16 [noting that an impartial and independent judiciary requires “a judge to exercise the powers of office without undue or unauthorized reliance upon non-judges”]). Applying these principles, the Committee has advised that a judge must “personally sign all documents which require the judge’s signature and which involve an element of judicial discretion, and should not delegate that function to the court clerk” (Opinion 89-142). The Committee has advised that a judge may delegate the function of researching whether a litigant’s address is located within a particular geographic boundary, but not the determination of whether filed papers may be refused or dismissed on jurisdictional grounds (see Opinion 14-137); a judge may delegate the function of counting posted cash for bail, but not the determination of whether the bond provides adequate protection that a defendant will return to court (see Opinion 93-88); and a judge may authorize his/her law clerk to conduct conferences and to share with the parties the law clerk’s view about the case and the issues involved, but the law clerk must make clear that the judge will make his/her own independent judicial decision regardless of the law clerk’s views (see Opinion 09-211).

         In the Committee’s view, the imposition of a fine, even if only for an arguably “routine” traffic infraction, is a nondelegable judicial duty. Indeed, judges have been disciplined for improperly delegating their adjudicatory responsibilities (see 1981 Ann Rep of NY Commn on Jud Conduct at 22; Matter of Greenfeld, 71 NY2d 389 [1988]) and for failing to personally oversee and approve the imposition of fines in traffic related offenses (see 2015 Ann Rep of NY Commn on Jud Conduct at 183 [resignation of town justice prompted by charges that he/she did not sufficiently oversee and approve dispositions of numerous Vehicle and Traffic Law cases]; 2015 Ann Rep of NY Commn on Jud Conduct at 166 [censure of a town justice for failing to supervise the imposing of fines and/or surcharges in traffic related offenses]).2

         Additionally, a judge may not pre-judge the merits of a case and set fines “without regard to the rights of the defendants to be heard” (see 1981 Ann Rep of NY Commn on Jud Conduct at 136). Because the imposition of a fine is a discretionary judicial determination, it must be made on a case-by-case basis, particularly where applicable statutes may authorize the judge to set a fine within a specified range after a guilty plea (see generally 22 NYCRR 100.3[B]; Opinion 15-34 [a judge who concludes that a prosecutor’s traffic ticket diversion program is lawful must nonetheless “evaluate each case, rather than adopting any blanket policies in response to such programs, because to do so would abandon their adjudicatory responsibilities”]). The mere fact that the delegation would be set forth in the form of a court order, and not by letter or office memorandum, does not change the result.

         Therefore, a judge may not by court order delegate to the court clerk the authority to impose pre-determined fines for traffic infractions.


     1 The Committee understands that applicable statutes permit certain motorist defendants to waive arraignment in open court and plead guilty in person or by mail pursuant to statutory criteria (see e.g. Vehicle and Traffic Law § 1805; Criminal Procedure Law § 170.10[1][a]). The propriety of a particular guilty plea presents an issue of law on which the Committee cannot comment (see Opinion 15-34).

     2 As a practical matter, the Committee also notes that, even if a particular fee schedule prepared by the judge is utterly flawless at the time it is created, it could still result in error through inadvertent or deliberate misreading by the court clerk, or through the schedule’s failure to reflect subsequent changes in the law.