Opinion 10-59

April 22, 2010

Digest:         A judge may not accept an award from a Violence Intervention Program and may not appear at a candlelight vigil for those affected by domestic violence.

Rules:        22 NYCRR 100.1; 100.2; 100.2(A); 100.4(A)(1); Opinions 08-191; 07-02; 04-91; 00-92 (Vol. XIX); 00-06 (Vol. XVIII)

Opinion: 

         An Acting Supreme Court Justice inquires whether he/she may accept an award from a Violence Intervention Program (Program) and appear at a candlelight vigil for those affected by domestic violence. The Program employs advocates who regularly accompany victims of domestic violence to Family Court to help them obtain orders of protection. In addition to advocating for victims, the Program provides services to criminal defendants by appearing in the judge’s Drug Treatment Court on behalf of individuals convicted of criminal offenses. Specifically, Program staff regularly appear in the judge’s Drug Treatment Court on behalf of individuals convicted of criminal offenses, including, but not limited to, “criminal contempt for disobeying court orders and other actions [involving] domestic violence.” The judge routinely refers those convicted of criminal offenses to the Program.

            A judge must avoid impropriety and the appearance of impropriety in all the judge’s 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]; see also 22 NYCRR 100.1 [judge must uphold the integrity and independence of the judiciary]). In addition, a judge must conduct all of his/her “extra-judicial activities so they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]).

         In Opinion 04-91, the Committee advised that a Family Court Judge should not attend a tree planting and candlelight vigil on behalf of those in the judge’s county who were crime victims. In the Committee’s view (Opinion 04-91):

. . . 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.

Similarly, in Opinion 00-92 (Vol. XIX), the Committee concluded that it was ethically impermissible for a Family Court judge to participate in a public ceremony at which the judge was to receive an annual award from a county domestic violence program. The Committee advised that (Opinion 00-92 [Vol. XIX]):

. . .the county domestic violence program provides 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. 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.

         While the work of the Program in the present inquiry is unquestionably laudable, accepting an award from the Program and appearing at the candlelight vigil held for those affected by domestic violence would compromise the judge’s appearance of impartiality in future cases because such activity suggests that the judge is sympathetic to the plight of victims - when a judge is required to apply - and appear to apply - the law in a completely neutral fashion. The fact that the judge also refers criminal defendants to the Program is not a mitigating factor. While the Program provides services to defendants in Drug Treatment Court, it does so as part of its overall mission to support and protect victims of domestic violence. In addition, the fact that the judge routinely refers those convicted of criminal offenses who are participating in Drug Treatment Court to the Program for education and counseling renders the judge’s participation impermissible (see e.g. Opinions 07-02 [Family Court judge should not serve as a director for a not-for-profit agency that provides services to persons who may have been referred to that agency by the Family Court.]; 00-06 [Vol. XVIII] [judge should not teach defensive driving class if he/she has the power to refer defendants to that class]).

         Therefore, the inquiring judge should not accept an award from the Program or attend the candlelight vigil held for those affected by domestic violence.