April 26, 2012
Digest: A judge who refers defendants convicted of certain crimes to attend victim impact panels may, for purposes of judicial education, observe a victim impact panel in operation in a county other than the one in which the judge presides; although the judge should, to the extent feasible, arrange to observe anonymously without being identified as a judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(6); Opinions 09-175; 06-82; 04-91; 03-45; 91-20 (Vol. VII).
A judge who presides over a category of criminal cases in which convicted defendants are typically required to attend a victim impact panel asks whether he/she may attend a local victim impact panel “as an observer and for educational purposes.” The judge notes that he/she does not currently have such a case pending in his/her court.
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 also be faithful to and maintain professional competence in the law(see 22 NYCRR 100.3[B]).
The Committee has previously advised that a judge may not volunteer to help establish a victim impact panel to which the judge would then refer drunk driving defendants as part of their sentence (see Opinion 91-20 [Vol. VII]) and may not serve as moderator and introduce the speakers at a meeting sponsored by the county victim impact panel which all defendants who have been convicted of driving while intoxicated or with ability impaired are required to attend (see Opinion 06-82). In the Committee’s view, the judge’s proposed participation in either of these situations could create an impermissible appearance of partiality and, thereby, erode public confidence in the integrity and impartiality of the judiciary (see Opinions 06-82; Opinion 91-20 [Vol. VII]).
Here, however, the judge does not propose to participate in establishing a victim impact panel or to publicly associate him/herself with such a panel by running or moderating a meeting sponsored by a victim impact panel. Instead, the inquiring judge proposes to attend a victim impact panel solely as a spectator, for educational purposes related to the judge’s judicial functions.1 That is, the judge wishes to observe victim impact panel proceedings because he/she will, as a judge, refer certain convicted defendants to such panels. The Committee finds the judge’s interest in supplementing his/her judicial education and training in this manner to be laudable (cf. 22 NYCRR 100.3[B]).
The Committee has previously advised that a Family Court judge who is assigned to a custody, visitation and family offense part may visit a local domestic violence shelter to supplement his/her judicial education and training, subject to certain limitations (see Opinion 09-175 [when interacting with shelter occupants, the judge must refrain from discussing court-related issues or pending cases]). In particular, Opinion 09-175 states:
In the Committee’s view, a judge does not violate the Rules Governing Judicial Conduct merely by visiting a domestic violence shelter, particularly where, as here, the treatment provided to occupants of the shelter falls within the sphere of the judge's responsibilities in adjudicating domestic violence matters. ... [F]or a judge who handles family offenses, visiting a domestic violence shelter to which the judge may make referrals is primarily an educational opportunity relating to the judge’s judicial duties (cf. 22 NYCRR 100.3[B]) and does not, in and of itself, create an appearance of impropriety (compare Opinion 03-45 [judge may not participate in a “ride along” program with the local police department]).
Here, too, it is clear that the judge’s proposed observation of victim impact panel proceedings is primarily an educational opportunity relating to the judge’s judicial duties. The judge will attend strictly as a spectator. However, to avoid any possible appearance of impropriety and to minimize the risk of inadvertent ex parte communications (see 22 NYCRR 100.3[B]), the judge should attend a victim impact panel in a different county from the one where the judge presides. And, to the extent feasible, the judge should arrange to observe anonymously; if the judge is publicly announced or identified as a judge during the session, the judge should leave. Subject to these limitations, the judge may attend (see Opinion 09-175; 22 NYCRR 100.3[B]).
1 The mere fact that a judge will be a spectator, standing alone, does not automatically render attendance permissible. The Committee has previously advised, for example, that a judge must not attend a heavily one-sided, victim-oriented event under conditions where the “judge’s mere presence would create an appearance of particular sympathy toward one side in court” (Opinion 04-91 [judge should not attend a candlelight vigil intended to “express intense sympathy for victims and their families” in a “highly emotional” context that will “implicitly if not explicitly [involve] advocating on behalf of victims’ rights”]).