Opinion 04-91

September 14, 2004

Digest:         Under the special circumstances presented, a Family Court Judge should not attend a tree planting and candlelight vigil on behalf of victims of crime in the judge’s county.

Rule:            22 NYCRR 100.2, 100.2(A), 100.4(A)(1). Opinions 91-132 (Vol. VIII); 95-34 (Vol. XIII); 96-96 (Vol. XIV); 99-31 (Vol. XVII); 99-46 (Vol. XVII); 00-54 (Vol. XIX); 00-92 (Vol. XIX); 02-35; 04-20.

Opinion:

         A Family Court judge inquires whether the judge may accept an invitation to attend a tree planting and candlelight vigil on behalf of victims of crime in the county, and their families. The ceremony, whose theme is “Victims’ Rights: America’s Values,” is held annually in the county and is sponsored by the county Mental Health Association and the county Crime Victims Assistance Program, a program of the Probation Department. Attendees are invited to bring photographs of loved ones for display at the ceremony, a roll call of victims is read, and crisis counselors are available. There are speakers, including county officials, victims, and probation personnel, but the judge would not speak.

         Section 100.2(A) of the Rules Governing Judicial Conduct provides that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 22 NYCRR 100.2(A). In addition, “A judge shall conduct all of the judge’s extra-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as judge . . . 22 NYCRR 100.4(A)(1). “A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.” 22 NYCRR 100.2.

         Although the inquiring judge’s court, the Family Court, has no criminal jurisdiction as such, it is involved with victims of crime, including victims of domestic abuse and sexual abuse, and with victims of juvenile delinquency. Cf., Opinion 00-92 (Vol. XIX). The Committee has approved participation of judges in extra-judicial programs relating to crime victims, if the programs are not so one-sided as to give rise to an appearance of partiality. Thus, judges may take part in domestic violence task forces that are devoted to the improvement of the legal system and in which not only law enforcement agencies but also public defenders are involved, “and . . . which . . . focus . . . on the manner in which cases [are] handled rather than being geared towards prosecution of such cases or advocacy on behalf of victims of domestic violence that are involved in court matters.” See, Opinions 00-54 (Vol. XIX); 95-34 (Vol. XIII).

         Under some circumstances, however, a judge’s public association with a heavily one-sided program on behalf of crime victims may create an appearance of partiality. In Opinion 00-92 (Vol. XIX), cited above, the Committee held that a Family Court judge may not receive an award from a domestic violence program and take part in an award ceremony, because the donor organization provides assistance and support services exclusively to domestic violence victims, including counseling, preparation of Family Court petitions, and attending Family Court proceedings with victims to provide emotional support and counseling. “Because the program’s activities are focused on supporting the petitioner (and the petitioner only) in the context of adversarial proceedings that come before the Family Court judge, accepting the award may reflect adversely on the judge’s impartiality.” Opinion 00-92 (Vol. XIX).

         The Committee also has held that a judge may not be an active member of an organization working against violence that among other things, seeks to promote “abuser accountability.” Opinion 99-31 (Vol. XVII). A judge may not serve on the board of a victim services agency that provides counselors and other services to victims of domestic violence. Opinion 96-96 (Vol. XIV); participate with law enforcement agencies in a project to develop protocols with respect to victims in the handling of domestic violence matters, where the project excludes legal representatives of defendants. Opinion 00-54 (Vol. XIX), or be a member of a Domestic Violence Community Coordinating Council whose purpose includes not merely improving the legal system but engaging in vigorous advocacy on behalf of domestic violence victims and providing services to them. Opinion 99-46 (Vol. XVII).

         At times, merely attending a function may be barred, such as attending a program that is weighted entirely in favor of enhancing the prosecution of crime Opinion 04-20 [a judge may not attend a conference entitled “The Path to Prosecution,” designed to enhance prosecution of domestic violence and sexual assault, at which the speakers are prosecutors and police officers, with no representation by defense agencies]. Attendance that involves the judge’s connection to a particular case may also be barred Opinion 91-132 (Vol. VIII) [ a judge may not attend an appreciation luncheon held by relatives of

murder victims over whose trial the judge had presided more than a year earlier]. See also, Opinion 02-35 [while court is in session a judge may not display behind the bench a plaque honoring the memory of a volunteer fire police officer who was killed in the line of duty by a drunk driver].

         The situation in the current inquiry has significant differences from the facts in these Opinions as well as important similarities. The Committee has weighed the considerations on each side. Thus, we note that the tree-planting/candlelight vigil would include no participation by the judge, other than being there; no connection by the judge to a particular victim; no advocacy in court on behalf of crime victims by an entity in which the judge is a participant; and, a far as can be determined at this time, no organized program intended to enhance the prosecution of crime.

         Nevertheless, in our opinion, this is a situation in which, under the circumstances, a judge’s mere presence would create an appearance of particular sympathy toward one side in court and therefore an appearance of partiality. The purposes of the ceremony are admirable, but their significance for this Opinion is that they are heavily weighted in favor of one side that comes before the court in a setting that is understandably highly emotional. These purposes include expressing intense sympathy for victims and their families, offering them moral support and counseling, and, implicitly if not explicitly, advocating on behalf of victims’ rights. The judge’s presence among victims and counselors, while candles are lit, trees planted, victims’ names read, and victims’ pictures displayed, and while speakers are expressing support for their victims’ rights, would under the circumstances create a risk of an appearance of public identification with victims’ rights and victims.

         On balance, therefore, the Committee concludes that the judge should not attend. (The Committee does not know whether victims who attend the ceremony or who are mentioned publicly or depicted in photographs may have related cases that appeared or will appear in the Family Court, but if so, the risk would be increased.) But the Committee does not intend to suggest disapproval of attendance at programs addressed to domestic violence, or similar problems, that are offered by the courts, bar associations, law schools or similar agencies, and all designed to improve the system of law or the administration of justice.