Opinion 23-53
May 4, 2023
Digest: A full-time quasi-judicial official may not join a government advisory council that seeks to implement comprehensive domestic violence services to survivors who need assistance addressing child support, unless the council’s membership includes representation from all participants in the adjudicative process.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.6(A); Opinions 17-108; 15-26/15-44; 12-156; 09-17; 08-191; 08-116; 08-09; 06-108; 06-72; 04-59; 03-45; 00-54/00-56; 99-111; 99-46; 95-34.
Opinion:
The inquiring support magistrate has been offered an appointment to the New York Safe Access for Victims Economic Security (SAVES) Advisory Council, which is funded by a federal grant from the Office of Child Support Enforcement.[1] As described, the SAVES Advisory Council currently includes representatives of several state government agencies, non-governmental domestic violence organizations, an indigenous people’s digital storytelling platform, domestic violence legal services organizations, an organization that provides parenting support to fathers, and two individual survivors of domestic violence. The SAVES Council seeks to help implement a coordinated approach to strengthen safe access to child support services for all families, which “will entail a holistic review of existing policies, procedures, and services for families impacted by domestic violence.” Members meet twice a year over the course of several years, and are expected to:
• Provide “feedback and input in the development of training for systems touching the Child Support Program including, but not limited to, the NYS Family and Supreme Courts, the NYS Department of Health, the NYS Department of Labor and Domestic and Sexual Violence services providers;”
• Provide “observations, insights and feedback on the analysis of case processing policies and the documentation process for each system touching the child support process;”
• React to and provide “guidance on recommended enhancements to existing safety options across the systems interacting with the Child Support Program;” and
• Offer guidance in working with relevant experts to implement process improvement mechanisms, which may include: procedures for warm referrals; revising forms for survivor accessibility; and strategies for using existing systems to expand outreach for child support.
A quasi-judicial official must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” to use the rules as guides to his/her conduct (22 NYCRR 100.6[A]). Accordingly, a support magistrate 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 support magistrate may generally engage in extra-judicial activities that are not incompatible with their office, and do not cast reasonable doubt on their capacity to act impartially, detract from the dignity of their office or interfere with the proper performance of their quasi-judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time support magistrate, like a full-time judge, may not accept appointment to a governmental committee or commission or other governmental position that is concerned with fact or policy issues in matters other than the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]; Opinion 09-17).
As described, the SAVES Council is primarily concerned with fact or policy issues directly related to the improvement of the law, the legal system, or the administration of justice. Thus, we conclude Section 100.4(C)(2)(a) does not bar a full-time judge or quasi-judicial official’s participation.
We have recognized that judges and non-judges alike broadly support “society’s goal of extricating domestic violence victims from abusive relationships” (Opinion 08-191). While “it is natural for the public to feel strong sympathy for such victims … judges must [also] carefully protect rights of an accused and hold offenders accountable only after a legally sound plea or conviction” (Opinion 15-26/15-44). Consequently, we have at times singled out extra-judicial activities involving domestic violence for heightened caution (see e.g. Opinion 17-108 [it “is critical to maintain both the appearance and the reality of impartiality” in matters involving domestic violence and abuse]).
Extra-judicial activities that seek to further society’s goals of extricating domestic violence victims from abusive relationships raise differing ethical considerations, depending on their purpose and participants (see Opinion 15-26/15-44). We have, for example, opined that judges may participate in a workshop, working group or governmental task force involving domestic violence, provided the makeup of the council consists of members representing all parties to the adjudicative process. Thus, we have advised that a judge may serve on a county’s Domestic Violence Consortium that includes representatives from all components of the community (see Opinion 03-45); may participate in a Domestic Violence Task Force that includes persons from both the District Attorney’s and Public Defender’s offices (see Opinion 95-34); may join, support, and participate in an organization formed to seek a change in the law that would enable more non-relative victims of domestic violence to obtain civil orders of protection in Family Court (see Opinion 08-09); and may serve on a Steering Committee established to make a comprehensive assessment of current practices employed in a particular county involving sex offenders, where (among other things) its membership “represents a wide variety of persons and organizations, including law enforcement and the defense bar” (Opinion 06-72). In such situations, “the balanced membership helps ensure that the judge’s participation will not cast reasonable doubt on the judge’s impartiality” (Opinion 12-156).
By contrast, we have cautioned that a judge should not participate in an extra-judicial activity that may be perceived as “an advocacy group on behalf of particular categories of persons involved in the criminal justice system” (Opinion 99-111). Accordingly, we said a judge should not join a Domestic Violence Task Force that seeks to promote “offender accountability” (Opinion 06-108) or a Domestic Violence Community Coordinating Council which vigorously advocates for such victims (see Opinion 99-46). Similarly, a judge may not attend and participate in monthly meetings of a judges’ working group for a lawyers’ committee against domestic violence, where the attorney members “regularly appear before the judge representing litigants alleging domestic violence” (Opinion 04-59) or assist law enforcement agencies in a project to develop protocols or guidelines involving domestic violence victims where the project excludes defense attorneys, and is intended to aid prosecutors in such cases on behalf of victims (see Opinion 00-54/00-56). We also said a judge may not participate in a panel discussion of offender accountability and court compliance calendars at a domestic violence training program sponsored by a domestic violence advocacy group (see Opinion 08-116). In each instance, we saw a risk the judge would be perceived as improperly aligned with one “side” of domestic violence cases (i.e. the side of prosecution, law enforcement, and victims).
Here, the grant that led to the establishment of this Council is intended to advocate for “domestic violence survivors who need child support services but are unable to access them.” On the facts presented, it appears that the Council’s membership includes individuals or entities that represent domestic violence survivors in child support proceedings, but does not include entities that provide legal representation to respondents or children in such proceedings. We conclude that the support magistrate may not participate in the Council unless its membership includes representation from all participants in the adjudicative process.
[1] SAVES grants are awarded by an office within the U.S. Department of Health and Human Services “to support domestic violence survivors who need child support services but are unable to access them” (https://www.acf.hhs.gov/css/grants/current-grants/safe-access-victims-economic-security-saves).