Opinion 17-18

January 26, 2017

Digest:         A part-time judge may suggest that local legislators amend a penal statute to include a potential jail sentence so that, for alleged violations after the effective date, the court may issue an arrest warrant to produce recalcitrant defendants.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A); 100.4(C)(1); Opinion 11-134.

Opinion:

         A part-time judge who presides in cases involving alleged town code violations has determined he/she cannot legally issue an arrest warrant to produce recalcitrant defendants unless the penalty portion of the applicable town law includes potential jail time. Thus, whenever a defendant is charged with violation of a particular town law that provides for fines but not imprisonment, and he/she fails to appear, the judge “[has] no way of securing [his/her] attendance.” Accordingly, the judge asks if he/she may suggest that local legislators amend the law to include a potential jail sentence. If adopted, the amendment would empower the judge to issue an arrest warrant to produce future defendants (i.e. those charged with violations after the amendment’s effective date) who fail to appear pursuant to a criminal summons. The judge believes this will improve case management in his/her court in the future by preventing additional hard-to-clear backlogs on alleged violations of this town law.

         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 may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]) and may explain the court’s procedures for public information (see 22 NYCRR 100.3[B][8]). Of course, the judge must do so in a manner that does not cast reasonable doubt on the judge’s capacity to act impartially and is not incompatible with judicial office (see e.g. 22 NYCRR 100.4[A]).

         In the Committee’s view, this judge may suggest to local legislators that they amend a municipal penal statute to include a potential sentence of jail. The judge believes this amendment would enable him/her to issue an arrest warrant to produce defendants who otherwise refuse to appear pursuant to a criminal summons. The proposed amendment directly concerns the law, the legal system, or the administration of justice, especially as it is intended to improve case management in the judge’s court in the future by preventing additional hard-to-clear backlogs involving this penal statute. As such, both part-time and full-time judges would be allowed to propose such an amendment (see 22 NYCRR 100.4[C][1]). However, in doing so, the judge should not discuss any specific pending or impending cases (see 22 NYCRR 100.3[B][8]; Opinion 11-134).