Opinion 04-139
January 27, 2005
Digest: A judge should not sign a letter of a domestic violence organization that urges the judges in the county not to refer parties involved in domestic violence cases to counseling or anger management programs, nor should a judge be a member of the organization when the organization’s membership does not include representatives of the defense bar.
Rules: 22 NYCRR 100.1; 100.2(A); 100.4(A)(1); 100.4(C)(3); Opinion 99-61 (Vol. XVIII); Joint Opinion 00-54/00-56 (Vol. XIX).
Opinion:
A judge asks whether it is ethically permissible for judges who are members of an organization formed to eliminate and prevent domestic violence to sign a letter to the judges in the county endorsing the organization’s policy statement that urges judges not to refer parties involved in domestic abuse cases to counseling or anger management programs. The organization’s membership comprises judges, probation officers, District Attorneys, domestic violence service providers, and representatives from the Department of Social Services, the Office of Court Innovation, and a shelter. While representatives from the Public Defender’s office have been invited to participate in the organization’s activities, with one exception, they have declined to do so.
While the judge asks only about the propriety of signing a letter supporting the organization’s policy statement with respect to referrals for services in cases involving domestic abuse, the inquiry presents a broader question: Is it ethically permissible for a judge to be a member of the organization?
Pursuant to the Rules Governing Judicial Conduct, a judge may be a member of an organization devoted to the improvement of the law, the legal system or the administration of justice [22 NYCRR 100.4(C)(3)]. Such membership, however, is impermissible if it will “cast doubt on the judge’s capacity to act impartially as a judge.” 22 NYCRR 100.4(A)(1).
In Joint Opinion 00-54/00-56 (Vol. XIX), this Committee concluded that it is inappropriate for a judge to participate with law enforcement agencies in a "criminal justice focus group" for the local county coalition against domestic violence and sexual assault. The purpose of the focus group was to endorse the goals of the coalition, and in particular, to develop specific guide lines for the police, the District Attorney's Office, and the Probation Department to follow in such cases. Similarly, in Opinion 99-61 (Vol. XVIII), the Committee concluded that a judge should not serve on a subcommittee of a committee formed to establish a universal response to domestic violence. The subcommittee comprised a law clerk from Family Court, a police officer and a coordinator of the County Universal Response to Domestic Violence Project, and was charged with formulating a policy for retrieval of personal property by or on behalf of a respondent who is ordered to stay away from the premises where the property is located. In both cases, the Committee was concerned that the composition of the group memberships and the focus of the group activities would cast doubt on a judge’s ability to be impartial in domestic violence cases [22 NYCRR 100.4(A)], and could erode the public’s confidence in the integrity and impartiality of the judiciary [22 NYCRR 100.2(A)].
It is also the Committee’s view that it is impermissible for a judge to sign a letter supporting a statement that rejects, as a matter of public policy any referral of parties involved in domestic abuse cases to counseling or anger management programs. Indeed, it is never proper for a judge to attempt to publicly dissuade other judges from acting in a manner that is permissible under the law, and calling such actions “inappropriate” in a whole class of cases.
Moreover, in this instance, the letter is addressed to the other judges in the county and will undoubtedly become public. Thus, judges who exercise their lawful authority and in particular instances refer couples to such programs will find themselves in the position of being identified as acting contrary to the policy views of the local anti-domestic violence organization. While the organization is free to publicly express such views, members of the judiciary are not. Judges have an ethical obligation to uphold the integrity and independence of the judiciary. 22 NYCRR 100.1. For a judge to be a signatory to such a letter and policy statement would constitute an affront to that fundamental principle. Accordingly, we conclude that the judge may not sign the letter or otherwise be publicly identified with the policy position being espoused.