Opinion: 99-61

April 29, 1999

Digest: A judge should not serve on a local subcommittee that is formulating policy for the retrieval of personal property by respondents who are the subjects of orders of protection in domestic violence cases.

Rule:  22 NYCRR 100.1; 100.2(A).


            The inquiring judge submits the following inquiry:

Would you please advise whether, as a part-time Town and Village Justice, I can be a member of a subcommittee of a committee established for a universal response to domestic violence. This committee would attempt to formulate a policy for retrieval of personal property by or on behalf of a respondent who has been directed to stay away from the premises where the property is located by an Order of Protection.
The members of this subcommittee presently are a law clerk from Family Court, a police officer and a coordinator of the ________ County Universal Response to Domestic Violence Project. The goal of the subcommittee will be to establish a uniform policy for the county including all the various police agencies.

Please advise of your opinion of whether being a member is permissible.

            It is the opinion of the Committee that the judge should not serve as a member of the subcommittee. We initially note that it is unclear under whose auspices or by what authority this particular Universal Response to Domestic Violence Project exists. No indication is given that it is vested with the authority to impose rules or regulations that are binding on judges. But, even apart from the question of authority, it appears that the judiciary is being asked to assist the police in the formulation of policies that are to be carried out by the police. The judiciary is then placed in the position of issuing directives and passing upon the execution of procedures by the police that the judge has helped devise. It is our opinion that such an intimate working arrangement with the police, however well-intentioned, could erode public confidence in the impartiality of the judiciary, in contravention of section 100.2(A) of the Rules Governing Judicial Conduct. 22 NYCRR 100.2(A). Participation in the formulation of such a policy, and by extension, an advance commitment to adhere to the agreed upon procedures in cases of domestic violence, would, in our view, impinge upon the independence of the judiciary. 22 NYCRR 100.1. We therefore advise that the judge not serve on the subcommittee.