Opinion 24-53
March 14, 2024
Digest: An appellate judge may not speak at a victim impact panel in a county within the judge’s jurisdiction.
Rules: 22 NYCRR 100.2; 100.2(A), (C); 100.3(B)(6); 100.4(A)(1)-(3); 100.4(B); Opinions 21-59(A); 13-79.
Opinion:
An appellate judge asks whether he/she may volunteer to speak at victim impact panels conducted by the probation department in a county over which the judge exercises appellate jurisdiction. The judge is a former offender who was previously required to attend a victim impact panel as part of his/her own sentence. The inquirer would sit in the audience upon arrival, step up to the podium once recognized, and leave immediately after making a presentation. The judge would not take or ask questions, would discuss only his/her own case, and would not know the names of the audience members. The judge believes that attendees will appreciate the judge taking the time to appear and tell his/her story, and that such presentations help “dispel the belief of the participants that judges, under similar circumstances, would not have to attend a panel presentation.”
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]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others, nor permit others to convey the impression that they are in a special position to influence the judge (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 judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).
In Opinion 13-79, we advised that, because a judge’s participation in a victim impact panel as a former offender is essentially educational in nature, such participation would not necessarily create a public perception that the judge is aligned in interest with crime victims. Nevertheless, as we noted, “the judge’s proposed participation would not be anonymous, but would publicly associate the judge with a victim impact panel,” especially where the judge will “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.” Accordingly, in order to avoid any possible appearance of impropriety and to minimize the risk of inadvertent ex parte communications (see 22 NYCRR 100.3[B][6]) inherent in the judge’s speaking at a victim impact panel to which the judge could potentially refer defendants as part of their sentence, we concluded that the 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 only in another jurisdiction (id.).[1]
Similar concerns animated our advice in Opinion 21-59(A) about speaking at a victim impact panel conducted online as a remote or virtual program. In order to address the risk that an online program could be made available to individuals in the judge’s jurisdiction, we said the judge must advise the sponsoring agency that the judge’s presentation is solely for program participants and must not be made available to a broader audience, and must direct the agency to prohibit recording or distribution of the judge’s presentation by attendees (id.).
Here, because the judge’s appellate jurisdiction encompasses the county where the judge desires to speak, the judge may not participate. This geographical limitation remains necessary to avoid any appearance of impropriety and to minimize the risk of inadvertent ex parte communications with defendants required to attend a victim impact panel as part of a sentence whose appeal may come before the judge. The inquirer may, however, speak at a victim impact panel in a county outside of his/her appellate jurisdiction, should this option be available to the judge.
[1] Although the inquirer in Opinion 13-79 was exclusively assigned to civil cases, we noted that “the judge may preside over civil matters involving crime victims” (see Opinion 13-79 n 3). That the present inquirer, as an appellate judge, sits on both civil and criminal matters is therefore not dispositive.