Opinion 14-175

December 11, 2014

Digest:         Town or village justices, either individually or as magistrates’ association members, must not participate in the design or implementation of a county-wide traffic diversion program.

Rules:          22 NYCRR 100.2; 100.2(A); Opinions 14-12; 13-33; 12-68; 10-113; 09-118; 07-22; 00-95 (Vol. XIX); 96-132 (Vol. XV); Joint Opinions 13-124/13-125/13-128/13-129; 10-32/10-48; 06-154/06-167.

Opinion:

         A magistrates’ association asks whether its members may accept an invitation to participate in “an ad hoc committee or focus group” convened by a county board of supervisors to “discuss and participate in the design of a ‘traffic diversion’ program” proposed by a county agency. The district attorney has advised the association that no defense attorneys have been invited to participate. The Committee has previously noted that such traffic ticket diversion programs permit defendants charged with certain Vehicle and Traffic Law violations in the local justice courts to enter into plea agreements that involve paying a fee to the District Attorney’s office and attending a defensive driving course (see Joint Opinion 10-32/10-48). Typically, the fines for the original charge would have been paid into the State treasury; indeed, a key feature of the diversion programs, from the perspective of some non-judge holders of public office, appears to be the reallocation of funds to local or county governments that would otherwise accrue to the State.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee has consistently advised that judges must maintain their independence from prosecutors and not participate in “what is essentially the work of the prosecutor’s office” (Opinion 00-95 [Vol. XIX]; accord Opinions 14-12; 13-33; 12-68; 10-113). In particular, the Committee has advised that “the court should not be the source or inspiration for a plea agreement as it would create an appearance of partiality and an indication that the judge is predisposed towards the defendant’s guilt” (Opinion 09-118; see also Opinions 14-12; 13-33; 12-68; 96-132 [Vol. XV] [“the justice should be careful to leave the initiation and conduct of plea negotiations to the person whose duty it is to prosecute the charge”]).

         Thus, the Committee has advised that a judge may approve a defendant’s participation in a traffic diversion program as part of a plea agreement, assuming the judge determines it is lawful and appropriate under governing law, provided the judge “[does] not encourage, suggest, or request any such [plea] agreements” (Opinion 07-22; see also Joint Opinion 10-32/10-48).

         Accordingly, the Committee concludes that it would not be appropriate for judges, whether individually or as representatives of a magistrates’ association, to participate in the design or implementation of a traffic diversion program which is intended to result in plea agreements, as this conduct “is essentially the work of the prosecutor’s office” (Opinions 14-12; 13-33; 12-68; 10-113; 00-95 [Vol. XIX]) and is tantamount to encouraging, suggesting or requesting plea agreements (see Joint Opinion 10-32/10-48; Opinion 07-22).¹

         The appearance of impropriety is even greater where, as here, the proposed “ad hoc committee or focus group” would involve essentially private or “one-sided” meetings with local prosecutors and representatives of county agencies that may benefit from any proposed re-allocation of fines through the proposed traffic diversion program, without any representation of potentially countervailing interests (see, e.g., Joint Opinions 13-124, 13-125, 13-128, and 13-129 [“working with representatives of only one side of an issue” to develop policies, procedures or protocols to guide the court with respect to the counsel-at-arraignment program “could erode the public’s confidence in the impartiality and independence of the judiciary”]; 06-154/06-167 [Family Court judges must not participate in regularly-scheduled meetings with the representatives of a government agency which represents the interests of children and families, where the meetings involve discussion of substantive and procedural legal issues and do not include other agencies and parties representing other interests which are present in Family Court matters]).

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         ¹ In addition, it would be difficult, if not impossible, for a judge to participate in designing a traffic diversion program without creating the impression that he/she is deliberately helping “divert” funds from the State treasury to local or county governments (cf. Joint Opinion 10-32/10-48; Opinion 07-22 [a judge may not consider, “as a factor in evaluating a particular [plea] agreement, whether the proceeds of an otherwise fair and lawful traffic fine accrue to the town versus state treasury”]).