ASSISTANCE FOR TOWN AND VILLAGE JUSTICES
Enhanced Training for Non-Lawyer Justices
There are approximately 3,150 judges and justices of the New York State Unified Court System. Approximately 1,830 are justices of town and village courts, while around 1,320 serve on higher courts: city, county, family, surrogate, supreme and appellate. Judges of the higher courts serve full-time and are paid by state-appropriated funds administered by the Office of Court Administration and are sometimes referred to collectively as “state-paid” judges. Town and village court justices serve part-time and are paid by their individual local governments, typically at a small fraction of the salaries given to state-paid judges.
Collectively, the town and village courts throughout New York State hear approximately two million cases a year, such as speeding tickets and driving while intoxicated, small claims, landlord-tenant proceedings and misdemeanors. Town and village court justices may also preside at the arraignment of defendants charged with most felonies, set bail and issue or deny orders of protection. Notwithstanding their significant judicial authority, the diffuse and localized structure of the town and village courts means, among other things, that they are locally financed and operated, do not have the same ready access to the resources of the Office of Court Administration that the rest of the court system enjoys, and indeed are not subject to OCA’s direct supervision or control. While OCA provides them with significant assistance, as discussed below, the successful operation of these courts depends on the resources available to them locally, which vary widely.
Town and village court justices are the only judges in New York State who do not have to be lawyers admitted to the practice of law. Of the roughly 1,830 presently in office, approximately 700 have gone to law school. The rest, i.e. the non-lawyers, are often referred to as “lay justices.” This system of local magistrates, which harkens back to the colonial era when lawyers were relatively few and far between, is not unique to New York. Numerous other states, such as Texas, Arizona, Nevada, Colorado, Louisiana, South Carolina and Mississippi, have non-lawyer justices presiding in certain lower courts.
There is no distinction in New York between the lay or law-trained town or village justices as to the types of cases they may hear. Any town or village court justice, regardless of educational background, may preside over the matters typically within the jurisdiction of such courts, such as traffic cases, small claims, eviction proceedings, misdemeanors and violations. A landmark case before the Court of Appeals held that, while a defendant is constitutionally entitled to receive a fundamentally fair trial, a defendant charged in a town court with a crime was not entitled under New York or federal law to have the case heard by a law-trained judge, having asserted no other cause for transferring the case to another judge. People v Charles F., 60 NY2d 474 (1983). See also, People v Skrynski, 42 NY2d 218 (1977); North v Russell, 427 US 328 (1976).
At various times, the Legislature has been asked to consider amending the constitution to require all town and village justices be lawyers, or to replace the town and village court system with a network of regional or district courts made up of fewer judges, all of whom would be law-trained and serve full-time. While such proposals have never been effectuated, in 2006-2007 the Legislature, the Office of Court Administration (OCA) and the State Magistrates Association (SMA) made a significant commitment to enhance the resources available to the town and village courts and to improve the education and training provided to the justices of those courts. At the same time, the Legislature significantly increased the resources available to the Commission to enforce the judicial ethics rules, recognizing among other things that 70% of the disciplinary decisions rendered by the Commission involve town and village justices, and 80% or more of those involve lay justices.
As part of the regimen devised in 2006-2007, OCA implemented an Action Plan for the Justice Courts,1 which among other things provided for broader and increased attention to judicial education and a laptop computer with audio recording capability for each court to make an electronic record of all proceedings. OCA and the SMA developed a more extensive annual education and training curriculum, in which representatives of the Commission and the Advisory Committee on Judicial Ethics routinely participate with the goal of preventing violations of the Rules Governing Judicial Conduct. OCA created an Office of Justice Court Support that provides guidance and maintains a call line for town and village justices who seek assistance; it produced and updates an invaluable Justice Court Manual that offers best practices and advice on how to manage the courts;2 and it makes readily available other significant resources, such as its Guide to Small Claims.3 OCA is also introducing uniform case and financial reporting software to the computer systems of the town and village courts, to assist in the proper management and remittal of court-collected funds. These and other steps have helped to improve the overall administration of justice in the town and village courts.
The Commission has found overall that town and village justices are capable in the discharge of their duties and conscientious in their adherence to the judicial code of ethics. Yet the Commission has also encountered more disciplinary issues with town and village justices than with judges of the higher courts. Town and village justices account for 70% of the Commission’s disciplines, which at various times over the years has been more or less close to their overall percentage of the state’s judiciary, which has ranged from 67% to 59%.4 Over the last decade, while only 20% of the complaints received by the Commission were against town and village justices, 59% of the Commission’s investigations and 72% of its public decisions (120 out of 167) involved town and village justices, indicating that ethics complaints against them are more likely to have merit. Of those 120 public decisions rendered against town and village justices, 90 (i.e. 75%) were against lay justices.
It has been the Commission’s experience that many lay justices comport themselves and discharge their adjudicative responsibilities in such a manner as to seem indistinguishable from their law-trained counterparts. It is also true, however, that lay justices are more likely than law-trained justices to violate promulgated mandates to respect, comply with, be faithful to and be professionally competent in the law, in some instances because they do not appreciate certain nuances or even fundamental legal precepts that their law-trained colleagues are likely to know. For example, the Commission has rendered public decisions as to lay justices who repeatedly failed to advise litigants of such fundamental mandates as the right to counsel and the right to assigned counsel if indigent; or did not allow the parties a fair opportunity to be heard before rendering decision; or required the defense to present their case first; or ordered an eviction or rendered a default judgment without ascertaining that the missing party had been served with notice of the complaint and the court date; or delayed unreasonably in deciding a motion due to unfamiliarity with the law or procedure at issue.5
The Commission is available to work with the Legislature and the courts to improve the overall performance of town and village justices in this regard. We would be pleased to help design and teach more expansive courses in civil procedure, criminal procedure, property (with a concentration on landlord/tenant) and professional ethics, akin to the rigorous classes in these subjects that justices who are attorneys would have taken in law school.
The Judge’s Fiduciary Obligations
The Commission has commented in numerous Annual Reports, most recently last year, on recurring problems associated with the fiduciary responsibilities unique to town and village court justices.
Throughout the state, in all but the town and village courts, funds collected by the court are handled by professional administrative personnel or other non-judicial staff. In the town and village courts, however, that responsibility rests with the individual justices, who are typically assisted by a court clerk who may only serve part-time. Yet neither judge nor clerk is likely to be trained as an accountant or experienced in auditing or financial best practices.
Fines, fees and bail collected by town or village court justices must by law be deposited promptly into official court bank accounts. All fines, fees and forfeited bail must also be reported and remitted in a timely manner to the State Comptroller and the town or village’s chief fiscal officer, respectively. While improper financial management and record keeping most often results from honest mistakes, inattention or insufficient clerical assistance, they sometimes indicate serious misconduct, either by the judge or by the court staff in whom the judge has reposed significant responsibility to track the court’s finances.
The Commission has publicly disciplined approximately 80 town and village justices for significant violations of the various rules regarding the handling of court funds. Approximately 140 other judges have been cautioned for relatively minor violations of the applicable standards.
When a judge fails to deposit court funds for long periods of time, or deposits less money than was collected since the previous deposit, suspicions of wrongdoing inevitably arise, as they do by such financial irregularities as lengthy delays in filing reports of receipts with the State Comptroller and in remitting court funds to the town or village’s chief fiscal officer, large deficiencies (or surpluses) in the court account, negligence in failing to safeguard such funds, and failing to keep adequate records of court finances.
"Carelessness in handling public moneys is a serious violation of [the judge's] official responsibilities" and a "breach of the public's trust" which may warrant removal from office. Matter of Petrie, 54 NY2d 807, 808 (1981); see also Matter of Rater, 69 NY2d 208 (1987); Matter of Vincent, 70 NY2d 208 (1987). In Matter of Cooley, 53 NY2d 64 (1981), the Court of Appeals also noted that a judge's willful failure to make appropriate entries in court records, such as a docket book and cashbook, is a serious violation of the judge's administrative responsibilities, and may be punishable as a misdemeanor. Even where venality is not an issue, the judge’s negligence may still require public discipline because, as the Court said in Matter of Murphy, 82 NY2d 491, 494 (1993), “the mishandling of public money by a judge is serious misconduct even when not done for personal profit.”
In recent years, the Commission has become aware of several jurisdictions in which court clerks were prosecuted and convicted for the theft of court funds. While increased reliance on computers, accounting software, electronic banking and wire transfers has tended to increase the ability to perform audits and reconciliations on the one hand, it has also made it easier for computer-savvy employees to evade oversight by a computer-challenged judge.
The Commission reminds town and village justices that it is their responsibility to account for court funds and to certify compliance with applicable financial mandates in reports to the State Comptroller. Where a judge does not perform the financial responsibilities personally, he or she must exercise rigorous oversight of the court staff to whom such responsibilities have been assigned. That means reviewing the work of staff, performing spot checks to correlate the bail or fine assessed in a case with the amount collected, or periodically initiating an independent audit.
Where court staff have been convicted of theft of court funds, the judge may not be publicly disciplined if he or she had made reasonable efforts at oversight but was deceived by a clerk who cleverly hid the evidence of theft. But the judge who exercises little to no oversight may be subject to public discipline for the failure to supervise that helped facilitate the theft.
The Commission urges town and village court justices to take their fiduciary responsibilities seriously and, when they need help, to consult with their local Supervising Judge, the court system’s Office of Justice Court Support, the State Comptroller’s office and/or the State Magistrates Association. Dedicated training in accounting and finance, both for justices and court or town clerks, would significantly improve the fiduciary record of the courts and enhance public confidence in the operations of the local courts.
The Commission also recommends that the Legislature consider relieving under-staffed and under-resourced town and village justices of the responsibility to collect, deposit and remit all court funds, and perhaps repose such responsibility to a dedicated administrative staff, emulating on a regional basis what the professional staffs in higher courts do in collecting and accounting for bail, fines, fees and other funds.
4 At present, the roughly 1,830 town and village justices constitute 59% of the state’s judiciary. That is down from 67% three decades ago, when roughly 2,200 town and village justices comprised 67% of the judiciary. At the same time, the number of law-trained town and village justices increased from around 400 in the 1980s to over 700 in 2018.
5See, Matter of Susan R. Castine, 2019 Annual Report 117; Matter of John M. Skinner, 2019 Annual Report 239; Matter of Michael R. Clark, 2018 Annual Report 114; Matter of Gene R. Heintz, 2016 Annual Report 111; Matter of Edwin R. Williams, 2016 Annual Report 230; Matter of Joseph Temperato, 2014 Annual Report 217; Matter of Jerome C. Ellis, 2008 Annual Report 123.
From the 2019 Annual Report, pages 26-29.