Improper Delegation of Adjudicative Responsibilities

It is fundamental to the independence, impartiality and integrity of the judiciary for a judge to exercise the powers of office without undue or unauthorized reliance upon non-judges.  In a number of cases over the years, judges have been disciplined for actually or effectively ceding certain uniquely judicial functions and duties to others.  Recently, the Advisory Committee on Judicial Ethics addressed the issue, which was also illustrated in two disciplinary matters recently concluded by the Commission.

In Opinion 15-127, the Advisory Committee thoroughly and unequivocally responded to a supervising judge who asked whether judges in municipalities without a traffic violations bureau may, by standing court order, delegate to their court clerks the tasks of accepting written guilty pleas and imposing and collecting fines and surcharges, based on specific written guidelines created and approved by the judge in the form of a “fixed schedule” of fines. The clerks in such situations would apply the fine schedule without review by the judge.

As it has in previous opinions, the Advisory Committee distinguished between “ministerial” functions, which may be delegated, and “judicial” functions, which may not be delegated.  The Committee reiterated prior advice that “judicial decision-making” is not delegable, and that “the imposition of a fine, even if only for an arguably ‘routine’ traffic infraction, is a nondelegable judicial duty.”  Opinion 15-127, which cites pertinent Judicial Conduct cases and commentary from the Commission’s annual reports, goes on to emphasize that imposing a fine is a discretionary judicial function that must be made on a case-by-case basis, which would be thwarted by a system in which a court clerk would apply a predetermined fine to each traffic offense where a guilty plea was entered.  Whether by court order or memorandum, the Opinion concludes, a judge may not delegate the authority to impose fines.

The process of accepting pleas and imposing fines in speeding, seat-belt and other “routine” traffic matters may seem monotonous or inconsequential, but it is nevertheless an adjudicative role that is to be fulfilled only by the judge of the court with jurisdiction.  That there may be mitigating or aggravating circumstances in a particular case, such as prior convictions against the motorist, would only underscore the importance in assuring that a judge was reviewing the record and making the decision.  In such a situation, the judge may find it appropriate to impose a fine lower or higher than a formulaic guideline from which a clerk or other designee could not veer.

In Matter of Greenfeld, 71 NY2d 389 (1988), the Court of Appeals upheld the Commission’s determination to remove a village justice from office for inter aliaimproperly permitting the deputy village attorney to perform judicial duties in certain cases, including accepting guilty pleas and determining the amount of fines.

In 2014, the Commission accepted the stipulated resignation of a town justice in Westchester County after he was charged with misconduct for not sufficiently overseeing and approving dispositions in a significant number of Vehicle and Traffic Law (VTL) cases.  Matter of Porco, 2015 Annual Report 183. 

In Matter of Piraino, 2015 Annual Report 166, a town justice was censured for inter alia setting fines in hundreds of cases that were either above the maximum allowable by law or below the minimum required by law.  While the judge attributed many of the dispositions to his court clerk, who testified that the judge had authorized her to set fines in certain VTL cases according to a predetermined amount (which the judge denied), the Commission held that the judge was responsible for the conduct of the court clerk.

In 11 admonitions reported in its 1993 Annual Report, the Commission identified an improper practice in which town and village court justices in Cayuga County permitted the local sheriff’s office to review and approve bail bonds and sign the judges’ names to certificates of release from incarceration, without review by the judges.

In Matter of Rider, 1988 Annual Report 212, a town justice was censured for permitting the local prosecutor to prepare the judge’s decision, without notice to the defense.

In Matter of Hopeck, 1981 Annual Report 133, a town justice was censured for inter alia allowing his wife to preside over a series of traffic cases on an evening when the judge himself was unavailable.

From time to time, the Commission has also become aware of situations in which judges have delegated authority to court attorneys or law clerks to act in a manner that creates the appearance that they are judges.  While it is not uncommon or inappropriate for a judge to ask a court attorney to conduct conferences with the lawyers or parties in a case and make recommendations, at times such assignments constitute improper delegations of judicial authority.  Some court attorneys take the bench to conduct conferences, or have made express references to “my ruling,” “my cases” or “my decision,” or otherwise convey the impression that they are the judges.  Some have acted in a manner that encourages lawyers and parties to call them “Your Honor” or “Judge.”

While a court attorney should know better than to foster such an appearance, it is the judge who is ultimately responsible.  A judge is obliged not only to safeguard the independence and integrity of the judiciary but also to “require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge….” Section 100.3(C)(2) of the Rules Governing Judicial Conduct.


From the 2016 Annual Report, pages 18-19.