October 28, 2021
Digest: A judge may attend a local “Survivors Group,” composed of domestic violence victims, to better understand the difficulties encountered by victims of domestic violence, so long as no member of the group is a victim or witness in a matter currently pending before the judge.
Rules: 22 NYCRR 17.1(d)(1)-(4); 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(4); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.4(A)(1)-(3); Opinions 17-108; 16-117; 16-22; 15-47; 14-151; 14-04; 13-34; 12-64; 11-125; 11-85; 10-59; 09-175; 04-91.
A judge asks if they may attend a local “Survivors Group,” composed of domestic violence victims, to better understand the difficulties encountered by victims of domestic violence. The group meets periodically to discuss their domestic violence experiences and how they have addressed them. During the meeting, the participants may discuss their experiences with the court system in connection with their domestic violence allegations.
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 may participate in extra-judicial activities not incompatible with judicial office which do 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]-). A judge must perform judicial duties without bias against or in favor of any person (see 22 NYCRR 100.3[B]). A judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E]), including where the judge has a personal bias concerning a party (see 22 NYCRR 100.3[E][a][i]). A judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding,” unless an exception applies (22 NYCRR 100.3[B]).
As a general matter, judges should not seek out programs that parties who appear before the judge are likely to attend. Thus, a judge may not participate in a prison ministry program where inmates sentenced by the judge may be present in the program’s group sessions (see Opinion 16-22). Nor may a treatment court judge deliberately attend or participate in an exercise program together with treatment court participants (see Opinion 15-47). A judge who presides in a criminal part may not lecture at an anti-violence program at a local correctional facility, where the attendees are persons who are incarcerated while either awaiting disposition of an unresolved case or awaiting sentence and could appear before the judge as criminal defendants (see Opinion 13-34).1
Nor may a judge attend advocacy events for crime victims, particularly where the occasion is highly emotional or likely to attract substantial public attention and interest (see Opinions 04-91 [judge may not attend tree planting and candlelight vigil on behalf of victims of crime in the judge’s county]; 10-59 [judge may not appear at candlelight vigil for those affected by domestic violence]; 17-108 [judge may not participate in “Call to Service and Compassion Workshop” to honor child abuse victims and survivors hosted by local child advocacy center]; see also Opinion 11-85 [judge may not participate in private meeting with leaders of local victims advocacy group, where leaders’ stated goal is to discuss with judge the group’s importance and concerns, and to establish a “mutually respectful relationship” between the organization and the court system]).
A judge may, however, attend even one-sided events where the purpose of the judge’s participation is primarily educational and where the judge takes steps to avoid inappropriate interactions or communications with parties or lawyers. After all, a judge’s interest in supplementing their judicial education and training is “laudable” (Opinion 12-64; cf. 22 NYCRR 100.3[B] [a judge shall maintain professional competence in the law]). Thus, a Family Court judge may visit a domestic violence shelter to supplement their judicial education and training, so long as the judge refrains from discussing court-related issues or pending cases, since “the treatment provided to occupants of the shelter falls within the sphere of the judge’s responsibilities in adjudicating domestic violence matters” (Opinion 09-175). Similarly, a judge may anonymously observe a victim impact panel in a county other than the one in which the judge presides and to which the judge refers certain convicted defendants, since such observation “is primarily an educational opportunity relating to the judge’s judicial duties” (Opinion 12-64).
Indeed, in order to ensure that judges fully understand and appreciate the nature of the mandates and referrals they may impose, judges handling criminal matters are required to visit correctional facilities (see 22 NYCRR 17.1[d]-), even though, or especially because, defendants who appear before them may be housed there, while Family Court judges are required to visit facilities for the detention of juveniles, as well as psychiatric centers to which juveniles are referred (see 22 NYCRR 17.1[d]).
Thus, we conclude that a judge responsible for adjudicating domestic violence matters may attend, merely as an observer, a domestic violence Survivors Group composed of domestic violence victims, in order to better understand the difficulties encountered by victims of domestic violence, including through their experiences with the court system. As in Opinions 09-175 and 12-64, the proposed observation “is primarily an educational opportunity relating to the judge’s judicial duties.” The judge may not, however, comment on or participate in the group’s discussion, and must refrain from discussing court-related issues or pending cases. Further, if any member of the group is a victim or witness in a matter currently pending before the judge, the judge should not attend (cf. Opinion 14-151 [judge’s personal interaction with a litigant concerning the subject matter of a case that was recently before the judge would, at the very least, create an appearance of impropriety]). If the judge believes it will be helpful, the judge may reach out to the Survivor Group’s moderator in advance for assistance in ensuring these conditions are met.
1 To be clear, we see no impropriety in coincidental, acquaintance-level encounters, including those resulting from being members of the same religious institution or having children at the same school (cf. Opinions 11-125; 14-04; 16-117 [since a judge who teaches a fitness class for a not-for-profit entity “do[es] not control or direct who will sign up for the fitness class, it is possible that a litigant or an attorney who has appeared before you in a pending matter may participate in the class. This does not, in and of itself, create any appearance of impropriety”]).