Opinion 19-47

June 20, 2019

Digest:         A judge may not have a court clerk enter the proposed fine on a motorist’s mail plea from a fixed schedule of fines developed by the judge -- even though the judge intends to personally review, confirm, initial and approve the fines entered by the clerk -- where the underlying fixed schedule pre-selects specific fines from the statutory range and therefore is likely to create an appearance that the judge has pre-judged certain categories of cases without individualized consideration of relevant legal factors.

Rules:          VTL 1805(f); 22 NYCRR 100.2; 100.2(A); 100.3(B)(7); 100.3(C)(1); 100.3(C)(2); Opinions 15-220; 15-127; 14-137; 09-211; 89-142; 1993 Ann Rep of NY Comm on Jud Conduct at 16.

Opinion:

         The inquiring judges have created and approved judicial guidelines in the form of a “fixed schedule” of fines for guilty pleas received by mail pursuant to VTL 1805. For each offense, the first few columns simply track the statute, listing the range of statutory fines, mandatory surcharge, the number of points, and the range of jail time available (if any). The last three columns set forth one number from the statutory range for a first, second, and third offense.¹ The judges ask if they may direct their court clerks to “use [their] ‘fixed schedule’ to write on each defendant’s ticket the fine, then give it to us for review, and once confirmed, initial our approval.” The judges suggest this final step provides a distinction from Opinion 15-127, in which the court clerk would have been directed to impose the fine based on the fixed schedule “without further judicial review” by the judge.

         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 direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). Unless legally authorized, a judge may not delegate “judicial functions” to non-judicial personnel or others (Opinions 15-127; 15-220; 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 Comm 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”]).

         While the inquiring judges’ proposal would certainly avoid one pitfall of improper delegation of judicial duties, by providing for “further judicial review” after the court clerk enters the proposed fine (cf. Opinion 15-127), we conclude it would still create an appearance of impropriety on the facts presented.

         To start, it remains our view that the imposition or setting of a fine, even if only for a mail plea on an arguably “routine” traffic infraction, is a non-delegable judicial duty to be exercised by the judge on a case-by-case basis, taking into account all relevant legal factors.

         We assume for purposes of this opinion that the judges’ chart accurately summarizes the statutory ranges, and we acknowledge that each number selected for a first, second, or third offense appears to fall within the permissible range. Nonetheless, the chart does not –- and surely cannot -- reflect all relevant considerations for individualized consideration of each mail plea.

         To take one example, with respect to “[VTL] 1180-(d)(1) Speed in Zone – 10 or less mph over,” the judges have apparently chosen $50 as the fine for a first offense out of the statutory range of $45-150 (see supra fn 1). This pre-selected fine does not appear to account for other potentially relevant factors, such as whether the underlying speed limit was 10 mph or 50 mph, or whether the motorist included a statement or explanation for the judge to consider (see VTL 1805[f]).

         We see no impropriety in the judges’ creating a schedule for ease of reference which tracks the statutory requirements and ranges for each offense, including applicable fine ranges, mandatory surcharge, points, and any potential jail time. Nor is it inappropriate for a judge to think through, in advance, a possible starting point for the imposition of fines on defendants with and without prior convictions for the same offense. Thus far, the public will surely perceive the judge as attempting to ensure a degree of fairness and consistency within statutory requirements.

         But this particular chart appears to pre-select one specific fine out of the permissible statutory range, based solely on the number of prior convictions for the same offense without considering any other potentially relevant factors. At the very least, this aspect of the chart verges on dangerous territory, as it may begin to raise questions about whether the judges are pre-judging the mail pleas without any individualized consideration. The appearance is considerably worsened if the judges then direct their court clerks to use their fixed schedule to enter specific fines on the mail pleas, which the judges will later review and initial.

         Under these circumstances, we conclude the judges must not direct the court clerks to enter proposed fines on motorists’ mail pleas from the judges’ fixed schedule, as it is likely to create an appearance that the judges have pre-judged certain categories of cases without individualized consideration of relevant legal factors. The judges’ assurance that they will personally review, confirm, initial and approve the fines entered by their court clerks based on this schedule is not sufficient to dispel the appearance of impropriety.

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¹ For example, for “[VTL] 375-2(a)4 No/inadequate plate lamp,” the statutory range of fines is listed as $0-150 and the surcharge is listed as $58. Based on the chart, it appears the judges have selected $25 as the fine for a first offense, $50 for a second offense, and $100 for a third offense. In a more complicated example, for “[VTL] 1180-(d)(1) Speed in Zone – 10 or less mph over,” the chart suggests the judges have chosen $50 as the fine for a first offense (out of the reported statutory range of $45-150), $100 as the fine for a second offense (out of a range of $45-300) and $150 for a third offense (out of a range of $45-525).