Joint Opinion 15-26/15-44
March 19, 2015
Digest: (1) A judge may attend an annual fund-raising event for a not-for profit organization that provides services and support to victims of domestic abuse and child abuse. (2) A judge may attend a non-fund-raising breakfast organized by a consortium of domestic violence agencies to promote discussion of current issues related to domestic violence, including recent and pending domestic violence legislation, where the event and participants are not so imbalanced as to cast doubt on the judge’s impartiality. (3) At either event, the judge should absent him/herself if there is any discussion of a case the judge knows is pending before him/her or another judge in the same court.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3)(b)(ii); Opinions 14-117; 14-41; 13-185; 13-134; 13-124/13-125/13-128/13-129; 13-92; 12-156; 11-144; 11-85; 11-41; 11-67; 10-65; 10-61; 10-59; 10-13; 09-181; 08-191; 08-116; 08-09; 06-108; 06-72; 06-34; 06-05; 05-62; 04-140; 04-91; 04-59; 03-45; 02-33; 00-92; 00-54/00-56; 99-150; 99-137; 99-46; 96-137; 95-131; 95-34; 94-76; 91-92; 91-42.
In Inquiry 15-26, a judge asks if he/she may attend an annual fund-raising event for a not-for profit organization that provides services and support to domestic abuse and child abuse victims. The fund-raiser is open to the general public to be held at a local restaurant. Each attendee must pay an admission fee. The judge also asks the Committee to clarify whether Opinions 05-62 and 06-05 preclude a judge from attending this type of fund-raising event, in light of more recent Opinions 14-41 and 13-185.
In Inquiry 15-44, a judge asks if he/she may attend an annual “legislative breakfast” organized by a consortium of several dozen domestic violence related agencies which are “committed to the elimination of domestic violence through a coordinated community response.”1 The event’s purpose is “to collaborate... and... promote discussion of current issues related to domestic violence,” and discuss pending and recent domestic violence legislation. The event is not a fund-raiser, although the consortium requests that attendees consider a contribution to help defray the meal’s cost. The consortium invited public officials from all three branches of government, along with law enforcement personnel, public defenders, and the media. Scheduled speakers include executive branch officials, academics, representatives from Legal Aid, certain agencies and organizations that provide assistance with housing or other general social services, and a local organization that provides assistance specifically to victims of assault. The consortium sent the judge a personalized invitation, stating (among other things) that the event will provide an opportunity for the member domestic violence related agencies “to meet you personally and to discuss common interests and problems concerning” the issue of domestic violence.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-).
Attending Domestic Violence Related Events
The Committee believes judges and non-judges alike broadly support “society’s goal of extricating domestic violence victims from abusive relationships” (Opinion 08-191). Indeed, it is natural for the public to feel strong sympathy for such victims, and for the difficulty some have to understand why judges must carefully protect rights of an accused and hold offenders accountable only after a legally sound plea or conviction. The Committee has also recognized the risk that “it would be understandable for a defendant to perceive the Domestic Violence Court ... as more closely aligned with victims,” as compared with more cooperative, treatment-oriented courts (Opinion 08-191). Consequently, the Committee has, at times, singled out extra-judicial activities involving domestic violence victims for heightened caution.
Nonetheless, the Committee trusts that all judges, including those who preside in cases involving domestic violence allegations, will strive to follow all applicable legal and ethics principles when deciding any matter in their judicial capacity (see e.g. 22 NYCRR 100.3[B] [a judge shall not be swayed by public clamor or fear of public criticism]).
The present inquiries provide an opportunity for the Committee to review and, where appropriate, reconsider certain aspects of its prior opinions regarding extra-judicial activities in this area.
1. Attending a Victim-Oriented Candlelight Vigil or Tree Planting Ceremony
The Committee has advised that a judge should not attend a candlelight vigil held for those affected by domestic violence (see Opinion 10-59) and should not attend a tree planting on behalf of certain crime victims in the judge’s county (see Opinion 04-91). The Committee was concerned that a judge’s mere presence at either of those events “would create an appearance of particular sympathy toward one side in court and therefore an appearance of partiality” (Opinion 04-91). Of particular note, both the candlelight vigil and the tree planting ceremony were designed as highly emotional events to attract substantial media attention.
The Committee has implicitly reaffirmed these prior opinions, while distinguishing them, by noting that in each case, the event itself was “so extraordinarily one-sided in nature” that the judge’s mere attendance “would necessarily cast doubt on the [the judge’s] ability to be impartial” (Opinion 13-185).
2. Participation in a Workshop, Working Group, or Task Force
The Committee has previously advised that a judge may serve on a county’s Domestic Violence Consortium which includes representatives from all components of the community (see Opinion 03-45); may participate in a Domestic Violence Task Force that includes persons from both the District Attorney’s and Public Defender’s offices (see Opinion 95-34); may join, support, and participate in an organization formed to seek a change in the law that would enable more non-relative victims of domestic violence to obtain civil orders of protection in Family Court (see Opinion 08-09); and may serve on a Steering Committee established to make a comprehensive assessment of current practices employed in a particular county involving sex offenders, where (among other things) “the Steering Committee’s membership represents a wide variety of persons and organizations, including law enforcement and the defense bar” (Opinion 06-72). The Committee has noted that, in such situations, “the balanced membership helps ensure that the judge’s participation will not cast reasonable doubt on the judge’s impartiality” (Opinion 12-156).
By contrast, the Committee has advised that a judge should not join a Domestic Violence Task Force that, inter alia, seeks to promote “offender accountability” (Opinion 06-108); may not join a Domestic Violence Community Coordinating Council which vigorously advocates for such victims (see Opinion 99-46); should not attend and participate in monthly meetings of a judges’ working group for a lawyers’ committee against domestic violence (see Opinion 04-59); should not assist law enforcement agencies in a project to develop protocols or guidelines involving domestic violence victims where the project excludes defense attorneys, and is intended to aid prosecutors in such cases on behalf of victims (see Opinion 00-54/00-56); should not participate in a panel discussion of offender accountability and court compliance calendars at a domestic violence training program sponsored by a domestic violence advocacy group (see Opinion 08-116); and should not speak at programs sponsored by not-for-profit organizations that represent domestic abuse victims(see Opinion 09-181). In each instance, the Committee saw a risk the judge would be perceived as improperly aligned with one “side” of domestic violence cases (i.e., the side of prosecution, law enforcement, and victims).
3. Making Charitable Contributions and Attending Fund-Raising Events
The Committee has advised that “a judge’s donation to a not-for-profit charitable organization does not cast reasonable doubt on the judge’s capacity to act impartially as a judge and is therefore ethically permissible” (Opinion 14-117). Consistent with this view, the Committee has advised that a judge may purchase tickets and attend a fund-raising dinner for a not-for-profit organization that provides assistance and advocates for victims of domestic violence, subject to generally applicable limitations on judicial speech and conduct (see Opinion 14-41; 22 NYCRR 100.4[C][b][ii]). The Committee also advised that a judge may buy tickets and attend a fund-raising dinner for a not-for-profit organization which supports victims of child abuse and helps prepare them for court appearances, subject to generally applicable limitations on judicial speech and conduct (see Opinion 13-185); and a judge who regularly presides over criminal matters in which members of the local Fraternal Order of Police appear may attend fund-raising events held by the local Fraternal Order of Police in support of a charity as a paying guest but may not attend the organizations monthly dinner meetings (see Opinion 13-134). Nor is there an appearance of impropriety in making a monetary contribution to a not-for-profit organization such as the Legal Aid Society, even if the organization appears in the judge’s court, because “such a charitable contribution does not in any way ‘cast reasonable doubt on the judge’s capacity to act impartially as a judge’” (Opinion 95-131 [citation omitted]; see also Opinion 04-140).
4. A Broader Prohibition on Attending Events Sponsored by Domestic Violence Organizations
In Opinion 05-62, the Committee advised that a Family Court judge should not attend any function sponsored by a domestic violence advocacy organization that focuses on providing court-related services solely on behalf of domestic violence victims. Relying on opinions that precluded a judge from joining and actively participating in one-sided working groups that sought to address domestic violence issues (see Opinions 04-59; 99-46), the Committee concluded that a judge’s mere attendance at an event sponsored by a domestic violence advocacy organization was improper, where the organization’s “sole purpose is to provide services for domestic violence victims in connection with court proceedings” (Opinion 05-62). The Committee adhered to this view in Opinion 06-05 and, in fact, extended the principle to events sponsored by a domestic violence advocacy organization that “provides services that are not connected directly with court proceedings” (Opinion 06-05).
In Opinion 08-191, the Committee explained why it had applied different principles to judges who preside in Drug Treatment Courts, as compared with those who preside in Domestic Violence or Integrated Domestic Violence Courts, particularly regarding (1) attending events sponsored by organizations that appear in such courts, and (2) being honored by those organizations. The Committee stated:
Unlike the Drug Treatment Courts, Domestic Violence Courts appear to remain adversarial in nature, with the added factor of aggressive outreach to victims. Indeed, the adversarial stance of these courts is underscored by the fact that they are designed to “facilitate regular and intensive judicial supervision and monitoring of defendants.” Ensuring offender accountability, therefore, is a primary goal. At the same time, Domestic Violence Courts seek to achieve victim safety and to provide victims greater access to supportive services. Given these goals, it would be understandable for a defendant to perceive the Domestic Violence Court in general, and the presiding judge in particular, as more closely aligned with victims.
(Opinion 08-191 [citation omitted]). In this context, the Committee was concerned that merely attending events sponsored by domestic violence agencies would create an improper appearance. However, even in Opinion 08-191, it noted that “future events sponsored by other domestic violence organizations ... may not always raise the same concerns about impropriety as did the organizations involved in Opinions 05-62 and 00-92.”
On further consideration, the Committee believes the strict rule set forth in this fourth category of opinions singles out not-for-profit domestic violence organizations for an unduly restrictive approach as compared with other not-for-profit organizations that are even more directly aligned with law enforcement (such as, for example, a police benevolent association or a sheriffs’ association). The Committee has advised a judge may attend purely social events sponsored by a not-for-profit police association (see Opinion 94-76), and may attend such organizations’ fund-raising events (see Opinions 13-134; 11-67), even though a judge may not be a member of the organization and may not attend or participate in its business meetings (see Opinions 13-134; 99-137). The Committee believes that merely attending an event organized by a not-for-profit organization that provides services or advocacy for domestic violence victims is unlikely to create a greater appearance of impropriety than attending a similar event organized by a not-for-profit organization whose members are active law enforcement officers who may appear before the judge.
Thus, Opinions 08-191, 06-05 and 05-62 are thus modified to the extent they preclude a judge from merely attending any event whatever run by a domestic violence advocacy organization which solely serves domestic violence victims. Where the event’s overall context is not so one-sided and intensely emotional as to raise reasonable questions about the judge’s ability to be impartial, the Committee believes no appearance of impropriety is created by the judge’s mere attendance at such an event. Indeed, a judge who attends such events may have an opportunity to engage in one-on-one conversations with members of the public that could promote public confidence in the judiciary and dispel possible misconceptions about the judge’s role and responsibilities in cases involving claims of domestic violence.
At this time, the Committee has not been asked to reconsider its prior advice that a judge who presides in domestic violence cases should not accept an award from a domestic violence advocacy organization (see Opinions 10-59; 08-191; 00-92). Nor does there appear any reason to revisit this conclusion under the facts presented here.2
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Turning now to these specific inquiries, the Committee notes the events described – an annual fund-raiser and a “legislative breakfast” – are not the kind of highly emotional, extraordinarily one-sided events as the candlelight vigil and the tree planting described in Opinions 10-59 and 04-91. Nor is there any indication the inquiring judge will be honored or given an award at either event (cf. Opinion 00-92; 22 NYCRR 100.4[C][b][ii]).
As for Inquiry 15-26, the Committee concludes the inquiring judge may attend an annual fund-raising event for a not-for profit entity providing support services to domestic and child abuse victims (see Opinions 14-41; 13-185; 22 NYCRR 100.4[C][b][ii]).
With respect to the legislative breakfast (Inquiry 15-44), the Committee has previously advised that a judge may participate in a Domestic Violence Task Force that includes persons from both the District Attorney’s and Public Defender’s offices, without casting doubt on the judge’s impartiality (see Opinion 95-34). The Committee believes this principle applies to the judge in Inquiry 15-44, as it appears from those facts that the speakers and invited audience are balanced with both the prosecution and defense “sides” represented, in addition to the many academics and government officials expected to be present (see id.; see also, e.g., Opinion 11-41 [a court attorney-referee may serve on a county legislature’s citizen’s advisory committee on domestic violence, provided the membership “is not so imbalanced” as to cast doubt on the referee’s impartiality]). Indeed, as the name “legislative breakfast” suggests, it appears that there will be discussion of recent and proposed statutory changes, which are intended to improve the law, the legal system and the administration of justice with respect to domestic violence issues (see Opinions 08-09; 06-34; 96-137). Although the invitation states “this breakfast is also an opportunity for our Consortium members ... to meet you personally and to discuss common interests and problems concerning this issue,” the Committee emphasizes that judges should seek to minimize such conversations, which could potentially create an appearance that such persons “are in a special position to influence the judge” (22 NYCRR 100.2[C]) or could otherwise be misperceived as inviting prohibited ex parte communications (see 22 NYCRR 100.3[B]).3
Finally, at either event, to avoid any possible appearance of impropriety, the inquiring judge should absent him/herself if there is any discussion of a case the judge knows is pending before him/her or another judge in the same court (see Opinion 14-41; 22 NYCRR 100.2; 100.3[B]; 100.3[B]).
1There is no indication in the inquiry that any legislative officials were involved in organizing or sponsoring the event, and the event does not appear to be affiliated with any political party or organization.
2The Committee notes that certain earlier opinions may permit a judge to accept a domestic violence related award at a non-fund-raising event, under some circumstances (compare Opinions 10-59; 08-191; 00-92 with Opinions 91-92; 91-42). A judge who wishes to accept such an award should therefore seek guidance from the Committee on the specific circumstances presented (see also generally Opinions 10-65; 02-33; 99-150).
3To protect judicial independence, the Committee has generally advised judges against meeting privately with one “side” or interest group that apparently seeks to influence the judge (see e.g. Opinions 13-124/13-125/13-128/13-129 [public defender]; 13-92 [political party]; 11-144 [state police]; 11-85 [victims’ advocacy group]; 10-61 [town clerks’ association]; 10-13 [Chief of Police and the Commissioner of Public Works]).