Opinion 18-101

June 21, 2018

Digest:         Justice court websites may not include extensive information promoting a DA’s traffic diversion program, where the proposed language explains the program’s goals and purported benefits to participants; provides detailed application instructions; and states that the program is intended to improve prosecutorial efficiency. However, a justice court website may include a link to the DA’s website as a convenience to defendant motorists.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); Opinions 17-110; 13-33; 10-113; 09-118; 08-11; 00-95; 93-58.

Opinion:

         On behalf of the county magistrates association, a town justice asks if local justice court websites may include detailed information about the DA’s traffic diversion program. The proposed language exceeds 1,300 words (approximately three single-spaced pages). An introductory section lists the program’s primary goals, including:

Promot[ing] Efficiency in Prosecution. This program is designed to free up valuable prosecution resources, thereby allowing the District Attorney’s Office to focus on more complex cases. In addition, the program provides motorists charged with offenses an efficient means of disposing of their cases. …

Multiple subsections cover topics such as benefits to participants, eligibility requirements, and detailed application instructions. A subsection entitled “Court Dates” says the court “will be notified” of a defendant’s acceptance into the diversion program, “and your case will be adjourned for 60 days.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not convey, or permit others to convey, the impression that others are specially positioned to influence him/her (see 22 NYCRR 100.2[C]) and must avoid improper ex parte communications (see 22 NYCRR 100.3[B][6]).

         Judges must maintain their independence from prosecutors and not participate or assist in “what is essentially the work of the prosecutor’s office” (Opinion 00-95). Thus, a judge or court clerk “may not simply distribute the prosecutor’s printed materials to defendants” (Opinion 17-110) or otherwise act as the prosecution’s “agent or intermediary” (id.). For example, a court may not directly implement the DA’s programs or procedures (see e.g. Opinions 08-11 [program to facilitate pleas to lesser charges in traffic cases without court appearances by the DA’s office]; 93-58 [program purporting to direct how a judge may reduce charges in traffic infraction cases]) or designate the court clerk to advise defendants of the DA’s plea offer (see e.g. Opinion 10-113). Nor may the court simply inform defendants of the prosecuting agency’s procedures for seeking a plea reduction without taking steps to prevent any “appearance of partiality or … indication that the court is predisposed towards a defendant’s guilt” (see e.g. Opinion 13-33 [emphasizing that the court may instead “develop a form, without the police department’s or other prosecuting agency’s involvement, listing all of a defendant’s options”]).

         Here, the proposed language clearly promotes the DA’s traffic diversion program and thus may undermine public confidence in judicial independence. Among other things, it promises defendants an “efficient means of disposing of their cases” and touts the program’s role in improving prosecutorial efficiency. It further suggests the DA will simply notify the court on a defendant’s behalf to obtain an initial adjournment, all for the stated goal of “free[ing] up valuable prosecutorial resources.” Accordingly, we conclude the town and village justice courts should not include the proposed information about the DA’s traffic diversion program on their websites.

         We note, however, that the courts may, if they wish, link to the DA’s website as a courtesy for defendant motorists who would like more information about the DA’s traffic diversion program (see Opinion 09-118 [including the District Attorney’s website address on an OCA-approved form listing all options “does not create an appearance of partiality or an indication that the judge is predisposed towards a defendant’s guilt”]).