Opinion 10-124

October 28, 2010

Digest:        (1) Absent special circumstances that would create an appearance of impropriety, a part-time village justice may, to the extent it is legally permissible to do so, mandate that youthful offenders of Vehicle and Traffic laws attend a specific defensive driving program which is co-sponsored by a not-for-profit entity and a governmental agency and is specifically geared to offenders in that age group. (2) A judge whose spouse is an instructor for a defensive driving program may not refer defendants to the program unless the judge’s spouse will not be the instructor for any defendants the judge refers to the program but must disqualify him/herself, subject to remittal, in any case where the judge’s spouse testifies as a witness concerning a defendant’s participation in a defensive driving program that employs the judge’s spouse.

Rules:          Judiciary Law 212(2)(l); 22 NYCRR 101.1; 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.3(F); 100.6(A); Opinions 10-27; 10-23; 09-174; 07-41; 05-83; 04-124; 04-14; 03-107; 00-06 (Vol. XVIII); 97-47 (Vol. XV); 96-37 (Vol. XIV); 91-03 (Vol. VII); Joint Opinion 00-60/00-61 (Vol. XIX).

Opinion:

         A part-time village justice asks whether his/her non-judge spouse may accept employment as an instructor for a traffic safety program called “Alive at 25,” which is co-sponsored by a not-for-profit organization (the National Safety Council) and the local county government. The judge states that the program is “designed and geared towards young offenders of [Vehicle and Traffic] laws” (ages 25 and under), and that the judge is legally permitted to “mandate offenders who appear before [him] to attend this program as part of their sentencing.”

         The Advisory Committee on Judicial Ethics is charged with issuing advisory opinions to those individuals who are subject to the Rules Governing Judicial Conduct, which apply to judges, quasi-judicial officials, judicial candidates and others, but not to judge’s spouses (see Judiciary Law 212[2][l]; 22 NYCRR 100.6[A]). Thus, although the Committee has concluded that a judge may not be an instructor for a defensive driving course if the judge has the power to make referrals to similar programs (see Joint Opinion 00-60/00-61 [Vol. XIX]; Opinions 00-06 [Vol. XVIII]; 97-47 [Vol. XV]; 96-37 [Vol. XIV]; cf. Opinion 04-124 [judge who is empowered to refer defendants to defensive driving programs should not hold a financial interest in a commercial entity certified to administer and conduct such a program]), the Committee cannot comment on the propriety of a judge’s spouse serving as a defensive driving instructor. However, the Committee is permitted to advise the inquiring judge as to the effect, if any, that the judge’s spouse’s employment as an instructor for a traffic safety program would have on the judge’s judicial responsibilities when the judge is authorized to order a defendant to attend that program (see 22 NYCRR 101.1; see e.g. Opinion 10-23).

         A judge must avoid even the appearance of impropriety(see 22 NYCRR 100.2) and must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Among other things, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) or lend the prestige of judicial office to advance another’s private interests (see 22 NYCRR 100.2[C]). Judges must disqualify themselves from proceedings in which their impartiality might reasonably be questioned, including but not limited to instances where the judge knows that “the judge or the judge’s spouse ... is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]) or that the judge’s spouse has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; accord 100.3[E][1][d][iii]).

         The Committee has previously advised that a judge may not actively or tacitly promote the products or services of any organization (see Opinion 09-174). This rule is “particularly strict” with respect to products and services offered by a for-profit entity, because a judge is prohibited from lending the prestige of judicial office to advance private interests (id.). Thus, a judge may not endorse or promote programs or services offered by a specific for-profit organization but may include the organization’s name on a list of entities that offer such programs or services (see Opinions 10-27 [a judge may not endorse or promote a substance abuse education program offered by a particular company, but may include the company’s name on a list]; 07-41 [judge may not endorse any specific structured settlement broker, but may provide counsel with a list of such brokers]; 05-83 [a judge may not advise an applicant in a structured settlement buyout matter that better terms may be obtained from a specific company]; 03-107 [a judge should not permit a private for-profit mediation service to place promotional brochures in the courthouse and should not suggest the use of its services to parties before the judge]). However, the Committee has advised that a judge may permit a not-for-profit mediation corporation to display its promotional brochures in the courthouse, without any further endorsement by the court (see Opinion 04-14).

          In the Committee’s view, where it is legally appropriate to do so, there is no ethical bar to a judge making a referral to a specific program or service offered by a governmental or not-for-profit entity, rather than providing a list of programs, where the specific referral is motivated not by mere favoritism (see 22 NYCRR 100.2[B]-[C]) but instead by the judge’s individualized assessment of the defendant’s needs and the particular facts and circumstances presented. Such individualized determinations are fundamental to a judge’s adjudicatory duties, and, as long as they do not impermissibly promote private interests, the Committee sees no ethical obligation to ensure that referrals to educational and rehabilitative services and programs are evenly distributed.

         However, if the spouse of the judge in the present inquiry becomes an instructor for the Alive at 25 program that services the judge’s court, he/she will have a financial interest in the success of the program and any referrals the judge makes to the program may, at the very least, create an appearance of impropriety (see 22 NYCRR 100.2; cf. 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]; cf. Opinions 04-124 [“The incompatibility is not cured by not sentencing defendants to this particular program since it deprives [them] of an option that would otherwise be available”]; 00-06 [noting that “refusal to refer a defendant to the judge’s program as well as a referral to the program could both engender the perception” of improper influence by the judge’s own status as an instructor]).

         Under the circumstances presented, the Committee concludes that any appearance of impropriety resulting from an otherwise permissible exercise of the judge’s discretion to sentence a defendant to the Alive at 25 program can be avoided, as long as the judge can ensure that the defendant will not be assigned to the judge’s spouse’s class. However, the judge must disqualify him/herself, subject to remittal, if the judge’s spouse is likely to become a material witness in a proceeding before the judge, for example, if the spouse’s testimony about a defendant’s participation in a class taught by one of the spouse’s fellow instructors in the Alive at 25 program will be needed (see 22 NYCRR 100.3[E][1]; 100.3[F]).

         Alternatively, if the judge cannot be certain that a defendant sentenced to the Alive at 25 program will be excluded from the judge’s spouse’s class, the judge must exercise disqualification from all Vehicle and Traffic Law matters that involve offenders aged 25 and under, as long as the judge’s spouse is an instructor for the Alive at 25 program (cf. Opinion 91-03 [Vol. VII] [judge who refers cases to a county mediation service where the judge’s spouse is employed must disqualify him/herself “in any case where the spouse has any connection whatsoever” with such mediation). If such disqualification is remitted (see 22 NYCRR 100.3[F]), the judge may preside in the matter and may include the Alive at 25 program on a list of possible programs that the offender may choose to complete as part of a sentence for committing traffic-related offenses.