Opinion 21-56

April 29, 2021

Please Note: On review of a subsequent inquiry involving a proposed school bus stop-arm violation monitoring program, the Committee advised: "A town or village justice court may not access or use an online portal created by a for-profit vendor to prosecute and/or adjudicate VTL § 1174-a cases, nor participate in the vendor’s training to implement the program." See Opinion 24-124.

Digest:         (1) This Committee, unlike an individual judge, cannot determine the constitutionality of the enabling statute for a school bus stop-arm violation monitoring program nor whether any resulting guidelines, requirements, directives, forms, notifications or advisements emanating from that statute are lawful and thus ethically permissible.

(2) A judge must comply with legal mandates. Absent a legal requirement to do so, a judge should not voluntarily comply with guidelines that are not directly enabled by the law, to the extent that they require a judge to engage in ethically impermissible conduct.

Rules:          Judiciary Law § 212(2)(l); VTL § 1174-a; 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 101.1; Opinions 16-140; 16-68; 14-34; 11-87; 01-100/01-101; Marbury v Madison, 5 US 137 (1803).

Opinion:

The inquiring town and village justices preside in municipalities that are either considering adopting or have adopted a program under VTL § 1174-a (owner liability for failure of operator to stop for a school bus displaying a red visual signal and stop-arm) in conjunction with a third-party for-profit company, to use bus-mounted automatic cameras to collect money from owners of cars that pass school buses when their stop-arms are out. The statute expressly contemplates that local courts will participate in this initiative when the municipality lacks an administrative traffic violations adjudication bureau.¹ The judges ask if they may ethically adjudicate alleged violations under this program, under the totality of circumstances, including but not limited to the fact that the proposed citation/notice states: “this ticket [sic] is not subject to discretionary reduction. You cannot plead to a lesser offense, and the fine cannot be reduced.” The judges also ask:

“In the alternative, if the court determines in the administering/processing of the citation there is a lack of due process afforded the defendant, is the court permitted to preside over the matter?”

         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 must “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]).

         We have recognized that judges have the inherent power to determine what law governs the exercise of their obligations regarding ex parte communications, closed courtrooms, or the application for assigned counsel and whether or not non-legislated guidelines and/or directives will amend or supersede other rules or statutes including the Rules Governing Judicial Conduct (see e.g. Opinions 16-68; 16-140). Judges likewise have the inherent power to interpret the appropriate provisions of governing law (see generally Marbury v Madison, 5 US 137, 177 [1803] [“It is emphatically the province and duty of the judicial department to say what the law is.”]; Opinions 14-34; 16-140).

         Here, too, the statutes creating the stop-arm violation monitoring program in question and any guidelines, directives, forms, notices, or other items or procedures enabled by or emanating from this statute are subject to judicial review on due process, independence of the judiciary or other grounds. Indeed, the judge’s obligations in this area, regarding both the statute and its implementation, may have constitutional dimensions under the state or federal constitutions (see Opinion 01-100/01-101).

Clearly, a judge must comply with legal mandates. However, absent a legal requirement to do so, a judge should not voluntarily comply with guidelines that are not mandated by law to the extent that they require a judge to engage in ethically impermissible conduct (see Opinion 16-68). We reiterate that “a judge who makes a good-faith legal determination of the legal issues involved, and makes a good-faith effort to follow governing law, does not thereby violate the Rules Governing Judicial Conduct” (id.).

Further, we note that when a judge “has made a good-faith interpretation of governing law,” including but not limited to the constitutionality of such law, we believe “it would be inappropriate for the judge to defer to an inconsistent legal interpretation offered by another branch of government which would require the judge to participate in conduct the judge has concluded is unlawful” (Opinion 14-34).

This Committee, unlike an individual judge, cannot determine the constitutionality of the statute or whether or not the inquiring justices’ due process or other constitutional concerns are founded (see 22 NYCRR 101.1; see also Judiciary Law § 212[2][l]). Similarly, we cannot comment on whether compliance with any resulting guidelines, requirements, directives, forms, notifications or advisements enabled by or emanating from that statute is legally mandated and therefore ethically permissible (see id.).

         Finally, we note that any questions concerning the correctness of the inquiring justices’ interpretation of the law, to the extent unsettled, may be raised by those with legal standing to do so in the appropriate legal venue (see Opinion 11-87).

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¹ We assume such administrative adjudication programs may legally provide different standards of proof and/or evidence than courts within the Unified Court System.