Opinion 09-160

September 10, 2009

Digest:         It is ethically impermissible for a judge to allow the state police to determine trial dates in vehicle and traffic law cases to avoid incurring overtime costs associated with court appearances by state troopers. However, the judge may consider a state trooper’s regularly scheduled work hours as one factor, along with the needs of defendants, their attorneys, witnesses and the court’s limited resources, in determining the best trial date in a particular case.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(7); 100.3(C)(1); Opinions 09-105; 09-94; 09-38; 08-11; 07-115; 00-95(Vol. XIX); 96-150 (Vol. XV); Joint Opinion 07-185/08-68/08-77.

Opinion:

         A part-time town justice advises that the new state police captain and a senior sergeant in the judge’s jurisdiction have asked him/her to assist them in avoiding overtime pay for officers with traffic tickets pending before the judge. Specifically, these officers wish to provide the court with schedules for the state troopers who must appear in the judge’s court so that the court can schedule trials involving those officers during the officers’ regular work schedules. Moreover, the captain offered to have the sergeant schedule the trial dates for the court. The judge thus asks: (1) Is it ethical for the court to work so closely with the police that the police determine the court’s vehicle and traffic trial schedule?; (2) Is it ethical that the police assist the court in scheduling vehicle and traffic trials?; and (3) Is it ethical for the court to schedule trials to accommodate a police agency’s convenience, without a similar effort to accommodate the convenience of defendants and others?

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not convey or allow others to convey that such others are in a special position to influence the judge (see 22 NYCRR 100.2[C]). In addition, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]) and diligently discharge his/her administrative responsibilities without bias or prejudice (see 22 NYCRR 100.3[C][1]).

         The Committee has considered similar inquiries in the past, concerning ways in which a court may assist prosecutors and/or law enforcement to fulfill their prosecutorial and/or law enforcement functions efficiently, given their limited resources. For example, the Committee has advised that a court should not respond to a district attorney’s request to periodically provide the court with a list of cases so that the court may indicate on that list the status of each case for the district attorney’s convenience(see Opinion 09-94); should not provide a district attorney with an annotated court calendar in advance of court night indicating a defendant’s prior driving record (see Opinion 09-38); should not adopt a procedure the district attorney developed to facilitate defendants’ pleas to lesser charges in vehicle and traffic law matters that would eliminate the need for the district attorney or his/her staff member to appear in the judge’s court (see Opinion 08-11); should not provide the district attorney with a list of all open cases pending in the justice’s court at least once per month nor provide a schedule or court calendar for each assistant district attorney night/day at least one week in advance, so the assistant district attorney can prepare for court (see Opinion 07-115); should not mail to defendants in traffic cases a two-page document prepared by the District Attorney explaining the various options available to the defendant and requesting information concerning the defendant’s criminal record and past traffic convictions (see Opinion 00-95 [Vol. XIX]); and, should not notify police officers of the dates of trials at which they may be called to testify (see Opinion 96-150 [Vol. XV]). The Committee advised that engaging in any one of the described actions could compromise the independence of the judiciary (see 22 NYCRR 100.1), impair the public’s confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and create an appearance of impropriety (see 22 NYCRR 100.2).

         However, the Committee is not unsympathetic to the challenges facing both prosecutors and law enforcement officers in fulfilling their functions in the face of limited resources. In fact, the Committee has advised that a judge may consider a plea agreement that is memorialized in a form prepared by a prosecutor as long as it is legally permissible and complies with the rules governing judicial conduct and the advisory committee’s prior opinions concerning plea agreements (see Opinion 09-105) and may share information with members of the public, the media and the parties who appear in the court that he/she compiles for his/her own use to facilitate court operations, including a court calendar showing details of cases that may be heard on a particular court night and a court calendar showing the dispositions of cases heard on a particular court night (see Joint Opinion 07-185/08-68/08-77).

         Nevertheless, judges may not compromise their ethical obligations to mitigate the challenges that prosecutors or law enforcement officers face. Therefore, it is ethically impermissible for the judge in the present inquiry to allow the state police to determine or otherwise actively assist the court in scheduling trials that involve state troopers or for the judge to consider a state trooper’s work schedule as the sole determining factor when choosing trial dates. However, the judge may consider a state trooper’s regularly scheduled shift as one factor along with the needs of defendants, their attorneys, witnesses and the court’s limited resources when choosing the best trial date in a particular case.