Opinion 24-183
December 12, 2024
Digest: Assuming the proceeding is lawfully commenced, a town or village justice may ethically participate in a county’s school bus stop-arm violation monitoring program under VTL § 1174-a, where (a) the court schedules the hearing, (b) the District Attorney appears and prosecutes violations, and (c) the court performs judicial functions without any need to use or access a commercial vendor’s online portal. However, we cannot comment on any legal questions.
Rules: Judiciary Law § 212(2)(l); VTL § 1174-a; 22 NYCRR 100.1; 100.2; 100.2(A); 101.1; Opinions 24-155; 24-124; 21-56; 19-47; 19-03; 15-127; 09-211; 09-160.
Opinion:
The inquiring judge asks if it is ethically permissible to participate in a VTL § 1174-a school bus stop-arm violation monitoring program as implemented in a particular county.[1] As in Opinion 24-124, the county has entered into a contract with a for-profit vendor to impose monetary liability on vehicle owners for an operator’s failure to stop for a school bus displaying a red visual signal and stop-arm. However, unlike Opinion 24-124, neither judges nor court staff will use or access the vendor’s online portal, and the vendor will not purport to set a hearing date. Rather, if a motorist disputes a violation, the vendor will notify the court to set a date and the District Attorney’s office will appear in court and prosecute the violation. The DA’s office, rather than the court, will introduce “all relevant documentation” and advise the vendor of the outcome of the hearing.
A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must also uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1).
As we advised in Opinion 24-124, a judge may not participate in a program established under VTL § 1174-a where a vendor uploads an “electronic evidence package,” sets the court date and time for the hearing and requires that the judge or court clerk access the vendor’s online portal to learn of a scheduled hearing, conduct such hearing and then report the court’s findings through that same portal. From an ethical perspective, we said this arrangement impermissibly intrudes upon the independence of the judiciary (see id.; see also Opinion 09-160 [judge may not allow state police to set trial dates in VTL cases]). Indeed, we have also advised that “the actual procurement of evidence sought or needed by a party in support of or opposition to a disputed claim, goes beyond the judge’s role as a neutral arbiter” (Opinion 19-03). Likewise, we have also said a judge may not delegate judicial decision-making (see e.g. Opinions 24-155; 19-47; 15-127; 09-211).
Here, as the District Attorney (rather than the court) will prosecute the tickets issued pursuant to VTL § 1174-a, and the court (rather than the vendor) will set a hearing date, we see no impermissible intrusion upon the independence of the judiciary regarding the scheduling and conducting of hearings. Thus, assuming the VTL § 1174-a proceeding is lawfully commenced, we see no ethical impropriety in the described procedure as implemented by the county.
Our conclusion here is a narrow one, as we cannot comment on any legal questions. In Opinion 21-56, town and village justices asked if they could ethically adjudicate alleged VTL § 1174-a violations under the “totality of the 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.’” In the alternative, the judges also asked “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?” (id.). In response, we advised that “unlike an individual judge, [we] cannot determine the constitutionality of the statute or whether or not the inquiring justices’ due process or other constitutional concerns are founded” (id.). We further advised that “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.” Since issuing Opinion 21-56, we have nonetheless provided ethics advice on issues raised in specific proposed implementations of VTL § 1174-a programs, both in Opinion 24-124 and again here. We emphasize that our advisory opinions can only address ethics issues under the Rules Governing Judicial Conduct; we cannot and do not opine upon the constitutionality of the statute in question or the additional due process concerns raised by members of the judiciary (see 22 NYCRR 101.1; see also Judiciary Law § 212[2][l]).
[1] As relevant here, the inquirer presides in a local justice court, and is also designated by an administrative judge to advise and support other town and village justices.