Opinion 23-143

December 14, 2023

Digest:  A town justice may preside in Vehicle and Traffic Law matters even if the judge believes the issuing law enforcement agency may follow a policy of enforcing traffic laws only against non-residents, provided the judge can be fair and impartial on a case-by-case basis.

Rules:   Judiciary Law 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.3(E)(1); Opinions 17-140; 10-32/10-48; 07-22; 05-84; 05-30).

Opinion:

          The inquiring town justice’s town is currently negotiating with a nearby municipality’s police department to provide additional patrol services.  Certain high-level officials in that police department have represented that, if hired, they will give warnings to residents and issue tickets only to non-residents.  The judge is concerned that this approach would constitute “selective enforcement” and would be “very unethical” for the police department.  The judge asks for guidance on his/her ethical obligations in these circumstances. 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law, and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge who receives information indicating a substantial likelihood that “a lawyer” or “another judge” has committed a substantial violation of the applicable ethics rules must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).  A judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

          The Rules Governing Judicial Conduct do not require a judge to report improper conduct by individuals who are neither lawyers nor judges, although a judge has the discretion to do so (see 22 NYCRR 100.3[D][1]-[2]; Opinions 05-84; 05-30).  This is especially true here, where it is unclear if this law enforcement agency will be hired and/or will implement the described policy.  We cannot address hypothetical or speculative questions (see Opinion 17-140).

          In general, the inquiring judge may hear Vehicle and Traffic Law matters as long as the judge can be fair, impartial, and non-partisan on a case-by-case basis (see e.g. Opinions 10-32/10-48; 07-22).  In any event, we make no comment on the propriety of the proposed ticketing policy, as it appears to raise primarily legal issues to which we cannot respond (see Judiciary Law 212[2][l]).