Opinion 09-101
April 23, 2009
Digest: A part-time town justice who owns an automotive towing service should not accept referrals for towing services from law enforcement agencies that appear in the justice's court, and should disqualify him/herself, subject to remittal, in proceedings arising from incidents where the judge's towing service was used.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(F); 100.4(D)(1)(a)-(c); 100.6(B)(4); Opinions 03-95; 95-68 (Vol. XIII).
Opinion:
A part-time town justice who owns and operates a towing and automotive repair business asks whether he/she may accept towing referrals from law enforcement agencies and whether he/she may preside over matters involving owners or operators whose vehicles were towed by his/her towing service.
According to the judge, area law enforcement agencies call the available towing services on a rotating basis, as needed. For example, the town police department has four local towing services available and rotates calls to each service every two-weeks. The judge advises that the county sheriff's department calls his/her towing service for two towns, not including the town where the judge presides, on a rotating basis. Also, the New York State Police include the judge's towing service in the rotation for calls on a state highway outside the town where the judge presides. The judge further advises that neither the sheriff's department nor the state police appear in the judge's court.
The judge also advises that, typically, owners or operators of disabled vehicles may call a towing service of their choice instead of using the service selected by law enforcement. However, if an owner or operator does not indicate a preference, the law enforcement agency dispatches the next towing service in the rotation. The judge's business charges fees for towing and storage only to the vehicles' owners, operators or insurance companies, rather than to any law enforcement agency.
The judge first asks whether the interaction between his/her towing service and these law enforcement agencies presents any ethics questions.
A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Nevertheless, a part-time judge may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of the judge's duties (see 22 NYCRR 100.6[B][4]). However, a judge is precluded from engaging in business dealings that (a) may reasonably be perceived to exploit his/her judicial position; (b) involve the judge with any activity that ordinarily will come before the judge; or (c) involve the judge in frequent transactions or with persons likely to come before the judge’s court (see 22 NYCRR 100.4[D][1][a] - [c]).
The Committee notes that, although the judge's business does not charge law enforcement agencies a fee for towing services, referrals that law enforcement agencies make to his/her business nonetheless directly increase the judge’s business income. Therefore, to the extent any such agency appearing before the judge makes such referrals, the public might reasonably question the judge’s impartiality (see 22 NYCRR 100.3[E][1]). Moreover, outside employment that appears to reflect a special relationship between the judge and law enforcement can create a public perception of undue influence (see Opinions 03-95; 95-68 [Vol. XIII]). Accordingly, in the Committee’ view, accepting referrals from a police agency that appears in the judge’s court could diminish public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). Therefore, the judge should not accept referrals from the town police for towing. However, the judge may accept such referrals from the county sheriff and New York State Police as long as these agencies do not appear in the judge’s court.
The judge also asks whether he/she is disqualified when a party who appears in his/her court was involved in incidents resulting in criminal or traffic charges and the judge’s service was employed to tow vehicles from the scene.
A judge must disqualify him/herself whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). Should the inquiring judge tow a vehicle from the scene of an incident, he/she may gain personal knowledge of disputed evidentiary facts about the incident. Should law enforcement thereafter file traffic or criminal charges concerning the incident in the judge’s court, the judge would then be required to disqualify him/herself from the proceeding (see 22 NYCRR 100.3[E][1][a][ii]).
In any event, the fact that the judge towed a vehicle involved in an incident, or if the judge was present at the scene of an accident, or of an arrest resulting in a criminal action which lands in the judge’s court, all could reasonably bring the judge’s impartiality into question (id.). Therefore, to avoid any appearance of impropriety, as well as raising any doubt as to the judge's ability to be impartial, the judge should disqualify him/herself in any proceeding arising from or relating to an incident in which the judge's towing service was used (see 22 NYCRR 100.1; 100.2[A]; 100.3[E][1]).
In either case, the judge’s disqualification is subject to remittal, unless the judge is a material witness in which case remittal would be unavailable. Therefore, if the judge believes that he/she can be impartial despite his/her involvement in the incident that gave rise to a proceeding in the judge’s court, the judge may disclose on the record the reason for his/her disqualification. If, following such disclosure, the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified, and the judge is willing to participate, the judge may do so. Any such agreement must be incorporated into the record of the proceeding (see 22 NYCRR 100.3[F]).