Opinion 18-145

October 18, 2018

Please Note: This opinion was modified as of September 10, 2020 to clarify that disqualification is required on “related matters” rather than all matters involving the parties to the Peer Court matter, consistent with Opinion 13-121.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time judge may serve as a volunteer judge for a Peer Court in the judge’s county, subject to certain restrictions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); 100.4(C)(3)(a)(i)-(ii); 100.4(F); 100.6(B)(1); Opinions 13-121; 12-18; 09-88; 07-42; 06-64; 00-50; 99-178; 97-123; 93-102; 93-13; 90-12.

Opinion: 

         A part-time judge asks if he/she may serve as a volunteer judge in a Peer Court in his/her county. The Peer Court is a diversion program for certain first-time juvenile offenders charged with low-level offenses; the courts will not make referrals to Peer Court. As with many youth courts, the jury, lawyers, clerk and bailiff are all peers of the juvenile offender; the volunteer adult judge “would be present on the bench to emphasize the seriousness of the crime committed and to help ensure that the hearing runs smoothly. The judge does not decide on sentencing, the Peer Court jury does.”

         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]). Although a judge’s judicial duties “take precedence over all the judge's other activities” (22 NYCRR 100.3[A]), a judge may generally engage in civic or charitable extra-judicial activities that are compatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (22 NYCRR 100.4[A][1]-[3]). A part-time judge may serve as an officer, director or non-legal advisor of an organization devoted to the improvement of the law, the legal system or the administration of justice, provided the organization is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]).¹ Although a full-time judge must not “act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity” (22 NYCRR 100.4[F]), part-time judges are exempt from this prohibition (see 22 NYCRR 100.6[B][1]).

         We have previously considered some aspects of a judge’s proposed involvement with a youth court. For example, a judge may participate in the planning and development of a youth court under the auspices of a local youth board and a federal prosecutor’s office (see Opinion 93-102), and may sit on its board, provided that the judge’s court is not one from which referrals are made to the youth court (see Opinions 99-178; 97-123; 00-50).

         Here, by contrast, the part-time judge seeks to sit as a volunteer judge in the Peer Court. We have said that presiding over “attendance court” proceedings for truant students in participating schools is a role “tantamount to that of a mediator” (Opinion 07-42), and we believe the same analogy applies here. Serving as a mediator in a private capacity is permissible for part-time judges (see Opinions 06-64; 93-13; 90-12), although not for full-time judges (see Opinions 12-18; 07-42; 22 NYCRR 100.4[F]). We thus conclude a part-time town justice may serve as a volunteer judge for a Peer Court in the judge’s county.

         Of course, the judge may not participate in a Peer Court matter that will conflict with his/her judicial duties or otherwise create an appearance of impropriety (see 22 NYCRR 100.2; 100.4[A][3]). The judge also must disqualify him/herself if the parties to a Peer Court case subsequently appear before the judge on a related matter (see Opinion 13-121; 22 NYCRR 100.3[E][1]). Such disqualification is subject to remittal after full disclosure on the record, unless a party appears without counsel (see Opinions 09-88; 06-64; 22 NYCRR 100.3[F]). As always, if the judge must disqualify him/herself so frequently that volunteering in Peer Court interferes with judicial duties, or involves the judge in ongoing controversies and litigation, the judge must discontinue the extra-judicial activity (see Opinions 09-88; 06-64; 22 NYCRR 100.3[A]; 100.4[A][3]).

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¹ Part-time judges are not subject to Section 100.4(C)(3)(a)(ii).