Opinion 08-191

November 10, 2008

Note: Please see Joint Opinion 15-26/15-44, which provides a broad overview of prior opinions about attending domestic violence related events.  Joint Opinion 15-26/15-44 modifies Opinions 08-191, 06-05 and 05-62 "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."

Dear Judge :

         This responds to your inquiry (08-191) regarding certain prior opinions the Ethics Advisory Committee issued about judges who preside in Problem Solving Courts. You have noted an apparent disparate treatment between judges who preside in Drug Treatment Courts, and those who preside in Domestic Violence or Integrated Domestic Violence Courts (hereinafter referred to collectively as Domestic Violence Courts), particularly regarding attending events sponsored by organizations involved in the matters heard in these courts and being honored by such organizations.

         All judges must avoid impropriety and the appearance of impropriety in all of their activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Further, judges may engage in extra-judicial activities so long as those activities 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; or do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         The application of these rules is necessarily different for each judge, depending on a number of factors, including the jurisdiction of the court in which he/she sits, the extent to which he/she engages in extra-judicial activities, and the nature of such extra-judicial activities. The Unified Court System’s Problem Solving Courts, in particular, have generated a number of ethics issues for the judges who preside in them, as these courts are intended to serve discreet populations in non-traditional ways.

         In rendering ethics opinions which specifically involve the Problem Solving Courts, the Committee has previously advised that a judge who presides in a Drug Treatment Court may attend and receive an award at a dinner sponsored by a local not-for-profit organization that is a member of the drug court team (see Opinion 02-33) and that a judge who is a committee member of a regional drug court team may attend a Red Cross fund-raising event and be honored during the event with other members of the drug court team (see Opinion 05-42). The Committee has reached different conclusions, however, as to the ethical propriety of a judge who presides in Family Court - and who hears, inter alia, domestic violence cases - attending similar events and being honored at such events (see Opinions 05-62; 00-92 [Vol. XIX]).

         After carefully reviewing these opinions, it is the Committee’s view that such disparate treatment is warranted given the distinct purposes in creating the Drug Treatment and Domestic Violence courts.

         The Drug Treatment Court is described as:


involv[ing] a dramatic intervention by the court in cooperation with an entire team of specialists in social services, treatment, and criminal justice professionals in the local community. In return for a promise of a reduced sentence (or return to the home of removed children in Family Court neglect matters), appropriate non-violent addicted offenders are given the option of entering voluntarily into court-supervised treatment. The rules and conditions of participation are clearly stated in a contract entered into by the defendant, the defense attorney, the district attorney, and the court.

(Problem Solving Courts, http://www.nycourts.gov/courts/problem_solving/drugcourts/overview.shtml [accessed Oct. 30, 2008]).

         It seems clear from this description that Drug Treatment Courts eschew the traditional adversarial court model in favor of a cooperative one. These courts are designed to encourage defendants to stop using drugs and to become law abiding, productive members of society. The goal for everyone involved is the defendant’s recovery, and all the government’s resources are brought to bear to help achieve this goal. In addition, a defendant charged with a drug offense can choose between participating in Drug Treatment Court or pursuing a traditional criminal proceeding. Under these circumstances, it is likely that the organizations that sponsor events at which a Drug Treatment Court judge would be honored do not appear to be aligned with one side of an adversarial proceeding. They simply provide services to a defendant with a drug problem who has chosen treatment to avoid the consequences of a criminal conviction. The risk of even an appearance of impropriety for a judge who attends an event sponsored by such an organization or who is honored by such an organization is, therefore, minimal.

         The same cannot be said for the Domestic Violence Courts. The mission and goal of the Integrated Domestic Violence courts is as follows:


. . . to handle related cases pertaining to a single family where the underlying issue is domestic violence. The IDV Courts seek to promote justice and protect the rights of all litigants while providing a comprehensive approach to case resolution, increasing offender accountability, promoting victim safety, integrating the delivery of social services, and eliminating inconsistent and conflicting judicial orders.

(Problem Solving Courts, http://www.nycourts.gov/courts/problem_solving/idv/ mission_ goals.shtml [accessed Oct. 30, 2008]).

          Similarly, the mission and goal of the Domestic Violence Courts is:


. . . to enhanc[e] victim safety and increas[e] offender accountability by facilitating victim access to needed services, providing judicial monitoring and promoting coordination among the justice system, community stakeholders and social service providers.

(Problem Solving Courts, http://www.nycourts.gov/courts/problem_solving/dv/mission_goals.shtml [accessed Oct 30, 2008]).

         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” (id.). 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. In its prior opinions, the Committee was faced with potential judicial participation with these domestic violence organizations that would have reinforced this perception. Thus, the Committee opined that such associations would be impermissible.

         For example, in Opinion 00-92 (Vol [XIX]), the organization seeking to honor a family court judge presiding in domestic violence cases “. . . provide[d] advocacy, assistance and support services on behalf of domestic violence victims, including assistance to individuals in completing petitions to be filed in the Family Court, and attending Family Court proceedings with domestic violence victims for the purpose of providing emotional support and counseling.” Similarly, in Opinion 05-62, the sole purpose of the organization involved was to provide services for domestic violence victims in connection with court proceedings.

         The activities in these two opinions stand in stark contrast to the activities sponsored by organizations providing drug treatment services to defendants who elect to participate in a Drug Treatment Court. Moreover, the only “victims” involved are the addicted defendant and society at large. The primary goal is treatment, not necessarily accountability.

          Without question, the services that domestic violence organizations provide to domestic violence victims are critical to society’s goal of extricating domestic violence victims from abusive relationships, and the judges who preside in domestic violence courts are no less worthy of the awards they would receive. However, it was, and still remains, the Committee’s view that had the inquiring judges engaged in the activities proposed in Opinions 05-62 and 00-92, they could not have avoided, at the very least, an appearance of impropriety (see 22 NYCRR 100.2).

         The advice the Committee provides in its opinions is necessarily driven by the facts of each inquiry. Judges who preside in domestic violence courts are and should be encouraged to submit new inquiries regarding future events sponsored by other domestic violence organizations, as they may not always raise the same concerns about impropriety as did the organizations involved in Opinions 05-62 and 00-92.

                                                 Very truly yours,


                                                 George D. Marlow,

                                                 Justice of the Supreme Court

                                                 Committee Chair