So now that I have your attention—no, I’m not talking about bribery or ticket fixing. Rather, the subject of this article is judicial pay arrangements which are based on some factor other than an annual fixed salary, e.g. paid per traffic ticket filed in or disposed of by the court.
While the purpose of such pay arrangements may not be nefarious, such pay measures equally damage the public’s confidence in the neutrality and impartiality of the judiciary. See Ind. Judicial Qualifications Commission Adv. Op. #1-13 at: http://courts.in.gov/jud-qual/2376.htm.
For most Indiana judges, compensation for judicial services is not an ethical issue since Circuit and Superior judges are paid a fixed annual salary set by the Indiana General Assembly. However, city and town court judges, as well as some small claims court judges, may be paid according to a local ordinance or by vote of the city/town council. Some local entities vary this pay annually, contingent on tax revenues collected, the number of cases filed in the city/town court, or some other measure.
At first blush, such variable pay calculations may have some allure for local governing bodies as a financial choice. After all, many private businesses make employee pay contingent on the amount of output the employee provides to the company. This philosophy, however, fundamentally misunderstands the purpose of the judiciary. Judges are not making widgets or even merely processing cases: a judge’s purpose is to officiate legal disputes and to dispense justice. A price tag cannot be put on that value on a per case basis.
Nationwide, the concern that courts were being viewed as possible revenue-generating sources led the Conference of State Court Admi nistrators (COSCA) to issue a 2011-2012 Policy Paper titled “Courts Are Not Revenue Centers.” (http://tinyurl.com/ncsc-revrept). The purpose of the paper was to examine the interplay between court revenues and court funding against the backdrop of “constitutional, statutory, and case law mandates and restraints governing access to justice, governmental revenues, and appropriate uses of court-generated revenue.” Seven principles were discussed regarding the assessment and distribution of court fees. Principle 7 specified:
The proceeds from fees, costs and fines should not be earmarked for the direct benefit of any judge, court official, or other criminal justice official who may have direct or indirect control over cases filed or disposed in the judicial system. All funds collected from fees, costs and fines should be deposited to the account of the governmental source providing the court’s funding. Id. at 11.
One of the concerns articulated in the paper was that tying judicial pay to specific court fees imposed could impinge upon a defendant’s due process guarantee to a right to a trial before a disinterested and impartial judicial officer, as the judge would have a pecuniary interest in fees payable by litigants.
In 1972, the United States Supreme Court examined whether a judicial officer’s responsibilities for a village’s finances led to such an inference of bias so as to deny a litigant his right to a fair and impartial trial. See Ward v. Monroeville, 409 U.S. 57 (1972). The village of Monroeville had a local ordinance authorizing the mayor to preside as a judge over certain traffic offenses. A large portion of the Monroeville budget was obtained from fees, costs, fines, and forfeitures imposed by the mayor in traffic court. When the mayor convicted Ward of two offenses and fined him $100, Ward appealed, arguing that he was denied his right to a fair and impartial trial because the mayor had an interest in securing revenue for the village. The U.S. Supreme Court agreed, setting forth the following standard:
[Every procedure] which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance, nice, clear, and true between the state and the accused denies the latter due process of law.
Applying that standard, the Supreme Court determined that such a possible temptation existed since the mayor’s responsibilities for village finances could make him partisan to maintaining the high level of contribution (through fines) from the traffic court.
Similar appearance concerns exist with judicial pay arrangements in which a judge is paid a token sum per case filed. Under Rule 1.2 of the Code of Judicial Conduct, a judge must act at all times in a manner that promotes confidence in the independence, integrity, and impartiality of the judiciary and must avoid both actual impropriety and the appearance of impropriety. The test for appearance of impropriety is whether “the conduct would create in reasonable minds a perception that the judge violated [the Code of Judicial Conduct] or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” See Ind. Code of Jud. Cond. R. 1.2, cmt. 5. When a judge is paid a sum per case filed in the court, there is a reasonable inference to citizens that the judge may be biased in favor of the agency or state, county, or local entities that generate cases for the court (i.e. the local police department). As the Indiana Commission on Judicial Qualifications recently articulated in Advisory Opinion #1-13 regarding such pay arrangements:
One can make a reasonable inference that a judge is more likely to rule in a favor of a litigant who brings extra “business” to the court. Even if a judge’s rulings are entirely free from outside influence, the mere existence of such a system can cast a cloud upon the integrity of the judiciary.
For any judges who are paid under variable pay arrangements and have ethical questions about that pay structure, I would encourage them (or their local governing executives) to contact me about whether their pay structure is consistent with the judge’s ethical obligations under the Code of Judicial Conduct.