Opinion 13-79

June 13, 2013

Digest:         A judge may not participate as a presenter at a victim impact panel in the jurisdiction where the judge presides, but may participate in such a panel in another jurisdiction.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.4(A)(1)-(3); 100.4(B); Opinions 12-64; 06-82; 91-20 (Vol. VII).

Opinion:

         A judge who presides in civil matters within a particular jurisdiction states that he/she was previously required to attend a victim impact panel as part of his/her own sentence on a misdemeanor driving under the influence charge. The judge wishes to share his/her personal experience as a former attendee, to help reinforce the message that the program is worthwhile and that all offenders must attend “regardless of their position in the community.” The judge asks if he/she may volunteer to speak at a victim impact panel.¹

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Subject to these and other limitations, a judge may speak, teach and lecture as long as doing so is not incompatible with judicial office, and does not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).

         The Committee has previously advised that a judge may not volunteer to help establish a victim impact panel to which the judge would then refer drunk driving defendants as part of their sentence (see Opinion 91-20 [Vol. VII]). Similarly, the Committee has advised that a judge may not serve as moderator and introduce speakers at a meeting sponsored by the county victim impact panel which all defendants who have been convicted of driving while intoxicated or with ability impaired are required to attend (see Opinion 06-82). In the Committee’s view, a judge’s participation in either of these situations could create an impermissible appearance of partiality, and erode public confidence in the integrity and impartiality of the judiciary (see Opinions 06-82; 91-20 [Vol. VII]).

         However, the Committee has also advised that a judge may, for educational purposes relating to the judge’s judicial duties, observe a victim impact panel as an anonymous spectator “in a different county from the one where the judge presides” (Opinion 12-64). The Committee distinguished the prior opinions by noting that the judge would not “participate in establishing a victim impact panel or ... publicly associate him/herself with such a panel by running or moderating a meeting sponsored by a victim impact panel” (id.).

         Here, of course, the judge’s proposed participation would not be anonymous, but would publicly associate the judge with a victim impact panel. Indeed, the judge’s proposed presentation is likely to draw attention to the judge’s judicial status, in that the judge wishes to emphasize that his/her judicial status did not exempt him/her from the obligation to attend a victim impact panel as part of his/her own sentence on a misdemeanor conviction.²

         It is significant that although the victim impact panel program is primarily devoted to “presenting the views and experiences of crime victims” (Opinion 06-82), the inquiring judge’s proposed presentation would emphasize his/her own views and experience as a former offender who was required to attend the same program as part of his/her own sentence. This perspective is distinct from that of a crime victim and, in the Committee’s view, will not necessarily create a public perception that the judge is aligned in interest with crime victims under the circumstances presented.³

         Thus, as in Opinion 12-64, the inquiring judge’s participation in a victim impact panel is essentially educational in nature; although the judge would be educating others who have received the same sentence as the judge (see 22 NYCRR 100.4[B]), rather than educating him/herself. Therefore, the judge may participate as a presenter at a victim impact panel, but to avoid any possible appearance of impropriety and to minimize the risk of inadvertent ex parte communications (see 22 NYCRR 100.3[B][6]), the judge may not do so in the jurisdiction where the judge presides, but may only participate in such a panel in another jurisdiction (see Opinion 12-64).

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     ¹ The Committee notes that although the inquiring judge does not preside over driving under the influence cases, he/she may preside over matters involving collateral civil legal issues.

     ² The Committee notes that the judge’s proposed presentation could promote public confidence in the judiciary (see 22 NYCRR 100.2[A]) by reinforcing the notion that all offenders, regardless of their status, are equal under the law.

     ³ Although the inquiring judge does not preside over criminal matters, the judge may preside over civil matters involving crime victims.