Joint Opinion 12-181/12-186

December 13, 2012

Digest:         A judge may accept an appointment to serve on a domestic violence fatality review team, subject to certain limitations, but may not accept an appointment to serve as a member of a STOP-DWI planning board.

Rules:          Executive Law § 575(10); § 575(10)(a)-(c); 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.6(B)(1); Opinions 12-139; 12-74; 98-105 (Vol. XVII); 96-105 (Vol. XIV); 95-46 (Vol. XIII); 95-37 (Vol. XIII); 93-95 (Vol. XI); 92-53 (Vol. IX); 91-124 (Vol. VII).

Opinion:

         In Inquiry 12-181, a judge who sometimes presides over matters involving allegations of domestic violence asks if he/she may accept an appointment to serve as a member of a New York State domestic violence fatality review team, pursuant to Executive Law § 575(10), where “subsection (iii)(d) of the legislation specifically references that ‘a member of the judiciary’ shall be included as a member of the team.” In Inquiry 12-186, a judge who sometimes presides over criminal matters involving Driving While Intoxicated (DWI) charges asks if he/she may accept an appointment to serve as a member of the county’s Special Traffic Options Program for Driving While Intoxicated (STOP-DWI) planning board, pursuant to a resolution issued by the county stating the program will involve “local magistrates” as well as a “community adjudication” component, to be developed with a local magistrates’ association.

         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]). Judges may not publicly comment on pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B][8]). Subject to these and other limitations, judges may participate in a broad range of civic activities which do not “cast reasonable doubt on the judge’s capacity to act impartially” and do not “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][1]-[3]). Both full and part-time judges are permitted to serve on governmental committees or commissions concerned with “the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]; 100.6[B][1]).

         Regarding Inquiry 12-181, the domestic violence fatality review team analyzes “the domestic violence-related death or near death of individuals, with the goal of: (i) examining the trends and patterns of domestic violence-related fatalities in New York state; (ii) educating the public, service providers, and policymakers about domestic violence fatalities and strategies for intervention and prevention; and (iii) recommending policies, practices, procedures, and services to reduce fatalities due to domestic violence” (Executive Law § 575[10][a]).

         It thus appears that the work of the review team is intended to improve the law, the legal system or the administration of justice by looking for trends and patterns in order to understand, and thereby help reduce and prevent, domestic violence fatalities (see 22 NYCRR 100.4[C][2][a]; compare Opinion 12-74 [a judge may participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program]).

         In light of this purpose, it is not surprising that the pertinent provision of the Executive Law requires this type of advisory committee to include judges (see Executive Law § 575[10]; compare Opinions 12-139 [statute requires appointment of judge to the alternatives to incarceration advisory board]; 92-53 [Vol. IX] [same]).

         Critically, the review team is not an advocacy group; in fact, it only reviews “deaths or near deaths in cases that have been adjudicated and have received a final judgment and that are not under investigation” (Executive Law § 575[10][c]). As a result, it appears that the judge will not, as part of the review team, be asked to comment publicly on a pending or impending matter (see 22 NYCRR 100.3[B][8]), and there is little likelihood that a case that the judge has reviewed as part of the review team will come before the judge and thereby interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.4[A][3]).

         The Committee therefore concludes that service on the domestic violence fatality review team, as mandated by a state statute, is permissible (see Opinion 92-53 [Vol. IX] [distinguishing service on an alternatives to incarceration board from service on a STOP-DWI advisory board because the functions of a board member are not related to the duties and responsibilities of a judge in sentencing defendants; participation by a judge is legislatively mandated; and service on the board “consists of reviewing the efficacy of programs designed as alternatives to incarceration and is clearly an activity devoted to the improvement of the law and the legal system”]). In participating on the review team, the judge should, of course, observe all applicable ethical limitations, including the prohibition on public comment on pending or impending matters (see 22 NYCRR 100.3[B][8]).

         With respect to Inquiry 12-186, the Committee has previously advised that a judge must not serve on the advisory board of a STOP-DWI program (see Opinion 91-124 [Vol. VII]); serve as an administrator of a STOP-DWI program (see Opinions 95-37 [Vol. XIII]; 93-95 [Vol. XI]); chair and organize a STOP-DWI program seminar (see Opinion 95-46 [Vol. XIII]); or permit the court to participate in a STOP-DWI program intended to facilitate the collection of DWI fines (see Opinion 96-105 [Vol. XIV]).

         The inquiring judge has, in effect, requested reconsideration of these precedents in light of a legislative resolution establishing the program. The Committee has reviewed a copy of the resolution provided by the judge, and concludes that, although the resolution appears to contemplate and welcome the participation of judges, it does not purport to mandate their participation.

         Unlike the domestic violence fatality review program (Inquiry 12-181), which provides after-the-fact review of matters that have already been fully adjudicated, with an eye to discerning patterns and helping prevent violence in the future (cf. Opinion 12-74 [a judge may participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program]), the STOP-DWI program is fundamentally aligned with prosecution and law enforcement interests (cf. 22 NYCRR 100.4[A][1] [judge must not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge]).

         Accordingly, the Committee adheres to its prior opinions which have consistently advised that involvement with STOP-DWI programs presents a conflict of interest and is incompatible with the judicial duties of a judge who presides in a court that hears drunk driving cases (see Opinions 96-105 [Vol. XIV]; 95-46 [Vol. XIII]; 95-37 [Vol. XIII]; 93-95 [Vol. XI]; 91-124 [Vol. VII]; compare Opinion 98-105 [Vol. XVII] [a judge may attend a STOP-DWI law enforcement conference, provided the judge, not the STOP-DWI program, pays the attendance fee]). Therefore, the inquiring judge must not serve as a member of a STOP-DWI planning board.