Opinion 15-50

April 23, 2015

Digest:         A judge must not, in order to collect fines or surcharges he/she imposed on a defendant for parking violations, contact another court to ask that payment be made a condition of any disposition of the defendant’s case in the other court.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(c); Opinions 15-70; 11-124; 10-175; 88-159.

Opinion:

         The inquiring judge, who regularly presides in parking violation cases, explains that until a defendant has three or more such violations in the same jurisdiction, the court cannot suspend the defendant’s license (see generally Vehicle and Traffic Law § 1200-d et seq.). As a result, when the judge imposes legally appropriate fines and surcharges on a defendant for one or two parking violations in his/her jurisdiction, the fines and surcharges are effectively unenforceable if the defendant fails to pay. Indeed, the judge believes that this is a problem in many courts across the state. To address this issue, the judge would like to “run the ... license” of a defendant who has failed to pay fines or surcharges on one or two parking violations in the judge’s jurisdiction and then, if the defendant has outstanding violations resulting in suspension in another jurisdiction, “write to the Court with outstanding suspensions and request that if and when the suspensions are cleared or reduced, payment of [the] parking violations [in the inquiring judge’s court] be made a condition of sentencing and or reduction.” The judge asks whether this proposed course of conduct is permissible.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Among other things, a judge must respect and comply with the law (see 22 NYCRR 100.2[A]), must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]).

         The Committee previously noted it is “critically important to protect and preserve both the fact and the appearance of the independence of every judge” (Opinion 11-124). Although a judge presiding over a case may consult with court personnel or other judges about the pending case(see 22 NYCRR 100.3[B][6][c]), this rule does not allow one judge to intervene in or try to influence cases properly before another judge (see e.g. Opinions 15-70 [a judge who receives credible information that another judge attempted to improperly influence a relative’s case by, inter alia, intimidating the prosecutor and seeking to have the case transferred to another judge, must report the other judge to the Commission on Judicial Conduct]; 10-175 [a judge who receives a letter from another judge to support an application pending in the receiving judge’s court, under circumstances that indicate to the receiving judge that the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct]; 88-159 [judge should not, on his/her own initiative, volunteer information or suggestions to influence another judge in sentencing a defendant]). Indeed, both this judge and the intended recipients of this judge’s proposed letters are “duly elected or appointed public officials who are vested with their own independent authority and obligations as judicial officers” (Opinion 11-124).

         Moreover, while the inquiring judge wishes to intervene in other judges’ cases only to “enforce” his/her own presumptively legal fines and surcharges, the Committee notes there could be an appearance of impropriety if the other court sua sponte imposes additional conditions on the defendant based on fines and surcharges imposed by the inquiring judge, especially if the defendant and his/her counsel may wish to assert defenses to those fines and surcharges (see 22 NYCRR 100.3[B][6]).

         This is of even greater concern where, as here, it appears from this judge’s description of the applicable statutes that the legislature did not provide a mechanism to combine parking violations across multiple jurisdictions to “enforce” them through suspension of a defendant’s driver’s license, but instead requires all three parking violations to accrue in one jurisdiction (cf. 22 NYCRR 100.2[A] [a judge must respect and comply with the law]).

         Thus, this judge may not, in an attempt to collect fines or costs he/she has imposed for parking violations, contact another court to ask that payment of those funds be made a condition of any disposition of the defendant’s case in the other court.