The Ethical Price of Masking Traffic Violations

John Vasquez

Judge, Austin Municipal Court

What is Masking?

Generally, masking is:

o disguising, changing, erasing or eliminating;

o a traffic offense;

o so that it does not appear on the record of the accused and is not used against the accused.

Why does this matter?Effective September 1, 2003, CDL holders are not eligible for mandatory DSC and deferred disposition. Even if the ticket was issued driving their personal vehicle.

This law change creates pressure on municipal courts to avoid putting CDL holders out of work.

What is a CDL Holder?

Q:A CDL authorizes the holder to drive all types of commercial motor vehicles?

True

False

What is a CDL Holder?

Q:A single class “C” misdemeanor traffic conviction can result in suspension of a CDL?

True

False

What is a CDL Holder?

Q: All moving violations have the same impact on CDLs?

True

False

What is a CDL Holder?

A:False, there are three classes of CDLs.

A:False, except for “serious traffic violations”, class “C” misdemeanor convictions by CDL holders are treated like convictions of non-CDL holders.

A:False, as few as two convictions for “serious traffic violations” could result in suspension of a CDL.

Why are CDL holders subject to special rules?

CDL holders operate CMVs transporting hazardous materials, double and triple trailers, passengers, and tank vehicles.

CMVs are almost twice as likely to be involved in collisions and three times more likely to be involved in fatal collisions.

From yesterday’s newspaper

Disciplining Judges

Judges may removed, disciplined or censured for:

Willful or persistent violations of Supreme Court rules;

Willful violation of the Code of Judicial Conduct; or

Willful or persistent conduct clearly inconsistent with performance of judicial duties or cast discredit on the upon the judiciary or the administration of justice. Tex. Const. art V §1-a(6)

Disciplining Judges

Upon the filing of a sworn complaint against a judge, the Judicial Conduct Commission, after giving the judge notice and an opportunity to appear, may recommend suspension of the judge. The Supreme Court, after considering the recommendation, may suspend the judge with or without pay. Tex. Const. Art. V §1-a(6)

How seriously are disciplinary actions against judges considered?

Disciplinary actions are treated most seriously because misconduct by any judge reflects on all judges and reduces confidence in the fairness and impartiality of the judiciary.

. . . the judiciary must nurture and maintain respect for their decisions, as well as the judiciary of the State of Texas as a whole. The Texas jurist must be held to the highest standards of integrity and ethical conduct, much more so than the standards to which members of the executive and legislative branches are held accountable.

In re Barr, 13 S.W.3d 525, 532 (Tex. Rev. Trib. 1998)

The Code of Judicial Conduct

Claims that the Code is vague and overbroad have been unsuccessful.

In other jurisdictions, the contention that non-lawyer jurist should be held to a lower standard than lawyer jurist has been rejected.

What Judicial Canons are implicated by Masking?Canon 1:

Upholding the Integrity and Independence of the Judiciary - An independent and honorable judiciary is indispensable to justice in our society.  A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.  (Excerpt).

What Judicial Canons are implicated by Masking?

Canon 2

Avoiding Impropriety and the Appearance of Impropriety in All of the Judge’s Activities - A.    A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Does the Code require the proof of intent?

No. Intent is not a requirement under the Code. An objective standard of review (a reasonable person standard) is applied.

The subjective intent or motivation of the judge is not a significant factor under this standard. Snow’s Case, 674 A.2d 573, 577 (New Hampshire, 1996).

Can a judge be disciplined for dismissing/changing the charge?

Yes. Changing the charge from a moving violation to a non-moving violation is a violation of the Code. Dismissing a charge improperly is also a violation of the Code. In re Conti, 516 N.E.2d 1207 (Court of Appeals of New York, 1987); In the Matter of Reedy, 475 N.E.2d 1262 (Court of Appeals of New York, 1985).

How are offenses masked?

Changing the charge from a moving violation to a non-moving violation;

permitting the defendant to pay a failure to appear charge then dismissing the traffic violation; and

dismissal of the traffic charge upon the making of a contribution equal to the fine amount to the jurisdiction.

What should you do?

Follow the law. As judges, we do not have the discretion to decide which laws are worthy of application. If we follow our personal opinions about the law, we will bring the judiciary into disrespect and will be acting contrary to our judicial duties.

Questions?

Thank you and Good Luck!