The Ethical Price of Masking Traffic Violations

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The Ethical Price of Masking Traffic Violations

• John Vasquez
• Judge, Austin Municipal Court

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What is Masking?

• Generally, masking is
• disguising, changing, erasing or eliminating
• a traffic offense
• so that it does not appear on the record of the
  accused and is not used against the accused.

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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.
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What is a CDL Holder?

• QA CDL authorizes the holder to drive all types
  of commercial motor vehicles?
• True
• False

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What is a CDL Holder?

• QA single class C misdemeanor traffic
  conviction can result in suspension of a CDL?
• True
• False

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What is a CDL Holder?

• Q All moving violations have the same impact on
  CDLs?
• True
• False

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What is a CDL Holder?

• AFalse, there are three classes of CDLs.
• AFalse, except for serious traffic violations,
  class C misdemeanor convictions by CDL holders
  are treated like convictions of non-CDL holders.
• AFalse, as few as two convictions for serious
  traffic violations could result in suspension of
  a CDL.

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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.

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From yesterdays newspaper
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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)

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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)

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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.

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• . . . 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)

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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.

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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).

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What Judicial Canons are implicated by Masking?

• Canon 2
• Avoiding Impropriety and the Appearance of
  Impropriety in All of the Judges 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.

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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.
• Snows Case, 674 A.2d 573, 577 (New Hampshire,
  1996).

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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).

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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.

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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.

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Questions?
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Thank you and Good Luck!