Opinion 19-52

June 20, 2019

Digest:         On these facts, a judge must not refer or sentence defendants to a restorative justice program sponsored by an alternative dispute resolution center where he/she volunteers as a small claims mediator. Once the judge terminates his/her involvement with the center, however, he/she may refer or sentence defendants to the center’s restorative justice program on a case-by-case basis if legally permitted and appropriate.

Rules:          22 NYCRR 100.2; 100.2(A)-(C); 100.3(A); 100.4(F); 100.6(B)(1); Opinions 19-01; 17-110; 16-91; 13-191; 10-124; 09-88; 06-64; 93-13; 91-03; 90-12.

Opinion:

         A part-time judge volunteers at a local not-for-profit alternative dispute resolution center as a small claims mediator. The center offers a new “restorative justice” program, to give “those who have been harmed and those who carried out the harm the opportunity to address the offenses directly, in an environment structured with safety, support, and accountability at the forefront of the discussion.”

         The sessions will be “adaptable” and strive to “create constructive environments” on a case-by-case basis. However, many details remain open, including whether the center will eventually charge for these services. The judge is “uncomfortable with” the proposed plea agreements in certain speeding ticket matters currently pending before him/her, and believes participation in the center’s restorative justice program would be “beneficial and appropriate.”¹ The center would not charge these defendant motorists to participate. Accordingly, the judge asks if he/she may propose and/or approve participation in a free restorative justice session at the center where he/she volunteers, as a condition of a plea agreement.² Alternatively, the judge asks if he/she may do so after resigning as a volunteer mediator.

         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]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge must not allow family, social, or other relationships to influence the judge (see 22 NYCRR 100.2[B]) or permit anyone to convey they are specially positioned to influence him/her (see 22 NYCRR 100.2[C]). While 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]). Finally, judges must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

1. Referral to ADR Center for Which Judge Volunteers as Mediator

         We’ve said a judge may suggest alternatives to a plea agreement offered by a defendant and prosecutor, if the judge does so non-coercively and is careful not to create an impression he/she has prejudged the case’s merits (see Opinion 17-110 [noting “significant ethical, constitutional, and statutory limits”]). The issue here, however, appears as a matter of first impression: whether the judge may effectively “refer” cases to an alternative dispute resolution center where he/she volunteers, by suggesting and/or approving it as an express condition to a plea agreement.

         In Opinion 90-12, we said a part-time judge must not serve as a mediator or arbitrator with an agency where the judge refers court cases, unless “the judge receives no compensation for his/her services as a mediator/arbitrator and the center charges no fee for its services.” In Opinion 09-88, we reaffirmed this principle, concluding that a part-time judge may volunteer as a mediator for a program that charges no fee for mediation services, even if the judge’s court may refer cases there for mediation (see Opinion 09-88).³ We cautioned, however, that “if the judge does so [i.e. volunteers as a mediator], he/she should not refer cases for mediation exclusively to the same program, but, instead, should advise the parties before the court of all the mediation options available to them” (id.).

         We now approach the question from the opposite perspective: May a judge refer a case to a not-for-profit alternative dispute resolution center at which he/she volunteers as a mediator? A review of the center’s website reveals that it charges for some mediation services on a structured fee schedule associated with the parties’ incomes, and the center has not decided if it will charge for the restorative justice program in future. Moreover, the judge is unaware of any like area programs, and thus would refer cases he/she believes appropriate for a restorative justice condition exclusively to the same center where he/she volunteers as a mediator. Thus, we conclude the conditions described in Opinion 09-88 are not present here.

         Further, as noted, the program is currently in its nascence, with many details to be worked out. Indeed, it is not clear how the judge would identify “those who have been harmed” by a defendant motorist’s alleged excessive speeding, as nothing in the inquiry suggests any injury to person or property. Though the program’s suitability for these defendants is clearly a legal issue we cannot address, we believe – while the judge continues volunteering as a mediator for the center – these uncertainties could easily create a public perception the judge is promoting the program because of his/her personal ties to the center.

         Thus, this judge may not “refer” cases to the not-for-profit alternative dispute resolution center where he/she is a mediator by suggesting and/or approving participation in the center’s restorative justice program as a condition of a proposed plea agreement.⁴

2. Referral to ADR Center After the Judge Terminates His/Her Connections

         As the judge believes the center’s restorative justice program would be beneficial and appropriate in these defendants’ plea agreements, he/she is willing to resign as mediator. The judge thus asks if he/she may propose and/or approve participation in a free restorative justice session at the center where he/she formerly volunteered, as a condition of a plea agreement.

         In Opinion 19-01, we considered whether a full-time judge “who recently resigned from the board of a public benefit corporation” may thereafter preside in matters involving the entity. We concluded the judge “(1) must recuse him/herself, subject to remittal, on all matters on which he/she was briefed or involved as a board member but (2) may preside in other matters involving the entity, assuming the judge can be fair and impartial, and disclosure is entirely discretionary” (id.). We did not impose a waiting period.

         Here, the judge’s former involvement with the center as a small claims mediator was necessarily far narrower in scope than that of an officer or director. As a volunteer small claims mediator, the judge clearly had no financial relationship with the center, no attorney/client relationship with it, and no role or stake in the organization’s governance. Thus we believe a waiting period is unnecessary.

         As we explained in Opinion 10-124 (citations and paragraph break omitted):

a judge may not actively or tacitly promote the products or services of any organization. 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. However, ... 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 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.

Indeed, to the extent the center’s restorative justice program is a specialized program, not offered by other local entities, such referrals are ethically permissible once the judge ceases volunteering with the center (see id.; 13-191).

         Once the judge resigns as a volunteer, terminating his/her involvement with the center, he/she may refer or sentence defendants to the center’s restorative justice program on a case-by-case basis where legally permitted and appropriate.

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¹ The tickets involve alleged Vehicle and Traffic Law violations involving speeds of approximately 100 mph in a 55-mph zone. In one instance, the DA proposed a reduced charge if the defendant motorist completed 30 hours of community service.

² We assume the judge would effectively “refer” or “sentence” defendants to the program by (for example), making it a condition of a conditional discharge, either agreed to in a plea negotiation or added by the judge sua sponte if there is no negotiated plea sentence.

³ As the exception created in Opinion 90-12 does not appear in the digest, we inadvertently overlooked it in certain opinions (see Opinions 06-64; 93-13; 91-03). In Opinion 09-88, we addressed the inconsistency by modifying these three opinions.

⁴ Opinion 16-91, permitting a judge to continue to volunteer with local not-for-profit organizations after asking them if they are willing to accept court placement of defendants, is not to the contrary. Critically, the judge there “does not control or direct where a defendant will be assigned to perform community service” (id.).