Opinion 21-119

September 9, 2021

Digest:         Whether a judge may, in the exercise of discretion, reduce or waive certain Vehicle and Traffic Law surcharges regardless of a defendant’s ability to pay is a question of law which this Committee has no authority to address.

Rules:          Judiciary Law § 212(2)(l); VTL § 1802(2); 22 NYCRR 100.2; 100.2(A); 101.1; Opinions 19-47; 15-152.

Opinion:

 The inquiring judge references certainly recently amended provisions of the Vehicle and Traffic Law. The statutory provisions at issue provide that a court or hearing officer has “discretion in the interests of justice to reduce or waive the amount of any fine, fee or mandatory surcharge assessed for a violation of any of the provisions” of the applicable portions of the Vehicle and Traffic Law (see VTL § 1802[2]). The judge asks if it is ethical “to waive all surcharges for defendants without taking into consideration their income.” The judge does not wish to distinguish between defendants based on their ability to pay.

         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]).

         As a threshold matter, we note that a judge is generally required to make discretionary determinations on a case-by-case basis, considering all relevant legal factors (see Opinion 19-47). However, in our view, the question of whether a judge may reduce or waive certain Vehicle and Traffic Law surcharges, regardless of a defendant’s ability to pay, is a question of law rather than judicial ethics. As we are authorized to answer only questions concerning judicial ethics, we cannot respond (see e.g. Opinions 19-47; 15-152; 22 NYCRR 101.1; Judiciary Law § 212[2][l]).