Opinion 24-133
September 12, 2024
Digest: A judge whose child is employed as a social worker in another county by a not-for-profit organization may refer cases to the organization’s restorative justice program so long as the judge is satisfied the child will never be assigned to work on cases in the judge’s county. Where the judge’s child may participate in cross-jurisdictional discussions with colleagues about restorative justice issues, the judge must disclose his/her child’s employment with the organization.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 20-19; 16-28.
Opinion:
A Family Court judge asks if he/she may refer cases to a not-for-profit agency’s restorative justice program in the judge’s county, given that his/her child was recently hired as a social worker for the agency’s restorative justice program in another county. The judge’s child would only be assigned to work on cases in the other county, and thus would neither work on cases referred by the judge nor otherwise appear in the judge’s court. However, it appears that agency staff in different counties may discuss their cases together, and thus the judge’s child may potentially be involved in “staff discussions” about the agency’s restorative justice efforts for cases that originated in the judge’s court. If the judge may make such a referral, he/she further asks if it is necessary to disclose the child’s employment.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).
We first note that the judge’s child is a social worker (rather than an attorney), and is working for a not-for-profit agency that receives direct court referrals of cases for potential resolution through a “restorative justice” approach.[1]
We have previously considered whether a judge may preside in cases where the Department of Social Services could (or did) refer a litigant or place a child at a not-for-profit agency that employed the judge’s first-degree relative (see Opinions 20-19; 16-28). In those circumstances we said the judge is disqualified, subject to remittal, in any cases where the judge’s first-degree relative has been personally involved, but has no obligation to disclose or disqualify in other cases involving individuals referred to or placed with the same not-for-profit agency (see id.). We further advised that “if the judge is satisfied that the agency has an effective procedure to insulate the relative from any cases that may come before the judge, he/she may rely on that insulation and need not disclose or inquire” (Opinion 20-19).
The facts presented here are somewhat different. On the one hand, the judge’s child is an entry-level social worker for the agency’s restorative justice program in a different county and will neither be working on nor supervising any cases in the judge’s jurisdiction, thus suggesting the judge may refer cases to the agency in the judge’s own county without disqualifying. On the other hand, the judge’s child will not be completely insulated from the judge’s cases because the agency’s employees may discuss their cases across county lines.
On these particular facts, we do not think such cross-jurisdictional discussions should preclude the judge from referring cases to the restorative justice program in the judge’s own county, provided the judge discloses the child’s employment.
Accordingly, where the judge’s child is employed as a social worker in another county by a not-for-profit agency and may participate in cross-jurisdictional discussions with colleagues about restorative justice issues, we conclude the judge may refer cases to the agency’s restorative justice program so long as the judge is satisfied that his/her child will never be assigned to work on cases in the judge’s county and the judge discloses his/her child’s employment with the agency.
[1] The Unified Court System’s website defines restorative justice as an alternative dispute resolution “process meant to address an incident of harm, or other dispute, in which stakeholders collectively identif[y] and address[] impact, needs and obligations, and create an action plan to move forward.”