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. Over the years, in disciplinary determinations or formal opinions, both the Commission and the Advisory Committee on Judicial Ethics, respectively, have addressed the matter of judges who literally or effectively ceded or inquired about delegating to others certain uniquely judicial functions and duties.
Certain delegations would seem so unequivocally improper, they need no explanation. For example, 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 accept guilty pleas and determine the amount of fines in various cases. 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.
In Opinion 15-127, the Advisory Committee on Judicial Ethics opined that it would be improper for a judge to delegate to a court clerk the tasks of accepting written guilty pleas and imposing and collecting fines and surcharges, without consulting the judge, even when based on specific written guidelines created and approved by the judge in the form of a “fixed schedule” of fines. As it often has, the Advisory Committee distinguished between “ministerial” functions that may be delegated, and “judicial” functions that 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.
While accepting pleas and imposing fines in “routine” traffic matters may seem monotonous or inconsequential, 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.
From time to time, the Commission has also become aware of situations – in both civil and criminal parts – in which judges have delegated authority to court attorneys or law clerks who 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 may constitute and/or appear to 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.” This can be especially confusing to pro se litigants who may not readily appreciate that the “judge” before whom they are conferencing a case may not be a judge at all.
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.
The Commission has also been apprised of potentially problematic administrative situations in some courts where institutional litigants appear on a regular basis. It would not be unusual, for example, for a judge to organize the court’s calendar in such a manner as to facilitate the presence of particular prosecutors or public defenders in criminal cases, or a city’s corporation counsel in civil parts where numerous claims against the municipality are docketed. However, it would be entirely inappropriate for the judge or the court staff to cede the scheduling of motions or appearances to such an institutional party, no matter how convenient it might be. The Commission has been advised informally of at least one court that appears to have yielded such authority to attorneys for a particular corporation counsel’s office. It would be wise for a judge to consult with the Advisory Committee on Judicial Ethics before allowing such a delegation, which could be viewed as an improper encroachment on the independence and impartiality of the judiciary.
The Commission urges all judges and court attorneys to acquaint themselves with the pertinent Advisory Opinions and disciplinary determinations that address and offer guidelines about delegating duties.
From the 2019 Annual Report, pages 22-24.