October 18, 2018
Digest: On these facts, a judge may not participate in an athletic/sporting event organized and promoted solely by the local District Attorney’s office.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); Opinions 18-15; 17-108; 15-26/15-44; 11-75; 10-166; 09-127; 00-54/00-56; 95-34.
A judge who sometimes presides in arraignments or issues orders of protection asks if he/she may participate in “the District Attorney’s Office’s [5K athletic/sporting event] to end Domestic Violence.” It is not a fund-raiser. Rather, it is “a FREE event” organized and promoted by the local District Attorney’s office1 “to help raise awareness and prevent domestic violence.” Members of the public may participate after filling out an online registration form.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge generally may engage in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-).
In Opinion 15-26/15-44, we reconsidered and modified prior opinions “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.” In particular, “[w]here 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,” we concluded “no appearance of impropriety is created by the judge’s mere attendance at such an event” (id.). Thus, a judge may attend a domestic violence advocacy organization’s annual fund-raiser, as it is “not the kind of highly emotional, extraordinarily one-sided event as the candlelight vigil and the tree planting” described in prior opinions (id.). A judge may also participate in a workshop or other program “intended to improve the law, the legal system and the administration of justice with respect to domestic violence issues,” where the membership is balanced, and the judge will not be “perceived as improperly aligned with one ‘side’ of domestic violence cases” (id.).
We continue to believe “judges and non-judges alike broadly support ‘society’s goal of extricating domestic violence victims from abusive relationships’” (Opinion 15-26/15-44 [citation omitted]). Nonetheless, “judges must carefully protect rights of an accused and hold offenders accountable only after a legally sound plea or conviction,” even when it may be natural to “feel strong sympathy” for victims of domestic violence or abuse (id.). Thus, it remains “critical to maintain both the appearance and the reality of impartiality in such matters” (Opinion 17-108).
If the domestic violence awareness event here were co-sponsored by the District Attorney’s office and the Public Defender’s office or other defense provider, participation by the inquiring judge would not be problematic. After all, judges generally may participate in programs or presentations relating to domestic violence where both prosecution and defense perspectives are involved (see e.g. Opinions 15-26/15-44; 10-166; 95-34).
Here, however, the event appears to be solely sponsored by the District Attorney’s office and is promoted in a manner that emphasizes the affiliation. Even though it may not involve the intense emotional experience of a candlelight vigil, tree planting, or a prayerful Call to Service and Compassion Workshop (see Opinion 17-108), it is likewise highly publicized, and the publicity strongly links the event to its sponsor, the District Attorney’s office. Under these circumstances, a judge’s participation could create an impression that he/she is “improperly aligned with one side of domestic violence cases” (Opinion 17-108; see also Opinions 18-15 [prosecution and law enforcement excluded]; 00-54/00-56 [defense excluded]; 11-75 [“inviting only the prosecutor’s interns … could create an appearance that the prosecutor’s office has a special relationship with the courts”]; 09-127 [law clerk or court attorney “should not participate in a legal educational program for school students that is sponsored solely by a district attorney’s office, but may participate if defense attorneys also are involved in the program”]). Therefore, the judge may not participate in the event.
1 A representative of a mayoral office has also appeared in some publicity for the event, but the event’s title makes clear that the District Attorney’s office is the primary or sole sponsor.