May a district judge who hears domestic violence cases join an interagency task force formed to fight domestic violence and sexual assault?

Plain-English summary

A district judge who regularly heard domestic violence misdemeanor and protection-from-abuse cases was invited to join a county task force being organized to combat domestic violence and sexual assault. The Commission concluded that membership or affiliation would adversely reflect on his impartiality under the stated mission.

The invitation described cooperation among law enforcement and other agencies to fight those offenses. The Commission said that focus could identify the judge with one side of cases before him, suggest preference for certain cases, and connect the judiciary with a prosecution-oriented effort. The task force had not yet defined its policies or activities, so the judge could not assess their additional effects on judicial duties.

The opinion distinguishes membership from providing information about the judicial system or speaking about improving the law and administration of justice. It also describes other task forces with different membership and purposes that earlier opinions had treated differently.

In practice

The holding addresses this proposed task force and a judge who routinely heard the offenses in its mission. The Commission left room for judicial-system information and law-improvement speech outside membership.

Common questions

Q: Why did the stated mission matter?

A: The Commission said a mission to fight offenses heard by the judge could make him appear aligned with law enforcement or one side of a case.

Q: Had the task force settled its activities?

A: No. The Commission said its undefined policies and activities prevented an informed assessment of other risks.

Q: Did the opinion prohibit all discussion of the judicial system?

A: No. It said the judge could provide information or speak on law and judicial-system improvement without joining the task force.

Background and rules framework

The opinion applies Canons 5 and 5B to civic activity, Canons 1 and 2A to public confidence and impartiality, and Canon 3 to the priority of judicial duties. It also notes Canon 4’s allowance for law-related speech.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 2A, 3, 4, 5, and 5B

Other opinions cited:

• Alabama Advisory Opinion 07-885, public domestic-violence advocacy
• Alabama Advisory Opinion 98-691, a project to improve domestic-violence laws
• Alabama Advisory Opinion 87-294, a task force including defense lawyers

See also

• AL Judicial Ethics Op. 08-894: Appreciation Letters to Jurors
• AL Judicial Ethics Op. 08-895: Recusal When a Relative Is a Firm Partner

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 08-893

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: June 27, 2008 ADVISORY OPINION 08-893
EXTRA-JUDICIAL ACTIVITY: SERVICE ON
TASK FORCE TO FIGHT DOMESTIC
VIOLENCE AND SEXUAL ASSAULT
ISSUE
May a district judge serve on a task force that is
being organized with an emphasis on broad
interagency cooperation to combat domestic
violence and sexual assault? Answer: No.
FACTS
A district judge has been asked to serve on a
county “Domestic Violence and Sexual Assault
Task Force.” The task force is in its
organizational phase, but its purpose, as stated in
the invitation to its first meeting to discuss its
formation, is the following:
A growing body of experience points to
the success of community domestic
violence and sexual assault task forces
which emphasizes broad interagency
cooperation in combating domestic
violence and sexual assault. These task
forces are successful due to the
cooperation and collaboration of law
enforcement, medical, local business,
religious, media, social services and
governmental professionals working in
tandem to fight domestic violence and
sexual assault.
The judge routinely handles domestic violence
misdemeanor cases and protection-from-abuse
cases.
DISCUSSION
A judge’s participation in extra-judicial activities
is governed by Canon 5, which provides, “A
judge should regulate his extra-judicial activities
to minimize the risk of conflict with his judicial
duties.” See also Canon 3 (“The judicial
activities of a judge take precedence over his
other activities.”) Canon 5B provides, “A judge
may participate in civic and charitable activities
that do not reflect adversely upon his impartiality
or interfere with the performance of his judicial
duties.” See also Canon 1 (“A judge should
uphold the integrity and independence of the
judiciary.”); Canon 2A (“A judge . . . should
conduct himself at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.”); Canon 3 (“A
judge should perform the duties of his office
impartially . . . .”).
“A judge’s role is that of a neutral arbiter. The
canons, as a whole, recognize the necessity of
preserving judicial impartiality in both fact and
appearance.” Advisory Opinion 06-871. While it
may be permissible for a judge to publicly take a
stance against crime, public confidence in the
integrity and impartiality of the judiciary is
undermined when a judge’s affiliation or
participation in civic activities results in an
appearance of an identification with one side in
cases before the judge, id., or with a particular
crime, Advisory Opinion 07-885 (a judge may
not recruit male community leaders to publicly
denounce domestic violence against women).
See also Advisory Opinion 00-750 (a circuit
judge should not give a speech at a “Take Back
the Night” rally that expresses favor and
appreciation to those who are proclaiming that
they are taking back the nights in the city to make
the city safe against sexual assault and will not
remain quiet about the issue; such a speech would
reflect adversely on the judge’s impartiality in
cases involving sexual assaults, given the
ambiance of the event and the partisan activities
of the event’s sponsoring organization); New
York Advisory Opinion 06-108 (attending
meetings of a local domestic violence task force
that aims to increase offender accountability by
promoting and facilitating a coordinated
community response of zero tolerance to
domestic violence could cast reasonable doubt on
the judge’s impartiality). Such appearance of
impartiality could require the judge to disqualify
himself, which in turn would potentially create
interference with the performance of
ADVISORY OPINION 08-893
Page 2
judicial duties through increased recusals.
Advisory Opinion 07-885.
As expressed in the invitation, the single
purpose of the task force is to fight domestic
violence and sexual assault – a goal that on its
face is closely associated with law enforcement
a n d t h e p r o s e c u t o r i a l f u n c t i o n ,
thereby raising a reasonable doubt regarding the
judge’s ability to act impartially. Not only must
a judge avoid the appearance of favoring victims
over accused persons, he must avoid the
appearance of giving preference to cases
involving certain matters, such as the particular
criminal offenses of domestic violence and
sexual assault. In addition, a judge’s association
with a predominantly law-enforcement and
prosecution-oriented entity could well
compromise the independence of the judiciary.
Furthermore, a judge must look beyond an
organization’s stated objective(s) to its actual
activities to determine whether his involvement
with it would necessarily create an adverse
reflection on his impartiality. Advisory
Opinions 06-871 and 02-804. In fact, a judge
must be ever mindful of the possibility that
changes in the entity’s activities, policies, and
associations may create an adverse reflection on
his impartiality. Advisory Opinion 02-804. See
also Commentary, Canon 5B (“The changing
nature of some organizations and of their
relationship to the law makes it necessary for a
judge regularly to re-examine the activities of
each organization with which he is affiliated to
determine if it is proper for him to continue his
relationship with it.”). Here, however, because
the task force has not yet defined its parameters,
strategies, policies, and activities, it is
impossible for the inquiring judge to fulfill his
affirmative duty to learn sufficient information
about the task force to better determine whether
his participation would violate his ethical
responsibilities as a judge.
Joining a task force whose parameters and
practices have not yet been defined opens the
judge to a plethora of pitfalls as the entity shapes
itself. For example, the judge must avoid
associating with a group whose activity
encompasses any of the following :
1
Focus on only one gender. Advisory
Opinion 07-885 (domestic violence
against women).
Use of the prestige of the judicial office to
garner support for the organization’s
activities and to encourage membership.
Advisory Opinion 07-885.
Giving the appearance of the judge’s
acting as the organization’s legal advisor
on issues that could come before the
courts for adjudication. Advisory Opinion
07-885 (providing an employers’ guide to
domestic violence in the workplace, which
includes the delineation of the employer’s
legal responsibilities and sample
workplace policies, guidelines, and safety
plans – all issues that could arise in
litigation).
The promotion of positions on issues the
judge would be called upon to decide.
Advisory Opinion 02-804 (the board of
Alabama Foster and Adoptive Parents
Association).
Involvement in the investigation and
prosecution of crimes. Advisory Opinion
87-293 (child advocacy center board of
directors).
___
This list is certainly not exhaustive. Because the
1
Commission may provide advisory opinions
concerning only whether certain specific actions
proposed or contemplated by a judge may
constitute a violation of the canons, Rule 17, Rules
of Procedure of Judicial Inquiry Commission, the
Commission is not authorized to issue broad
guidelines on general topics. Moreover, as noted
in Advisory Opinion 95-577, it would be
impossible to predict and address all of the
possible factual situations which might arise.
ADVISORY OPINION 08-893
Page 3
Giving the appearance of advocating for
the rights of a party or providing support
for a party in court cases. Advisory
Opinions 07-885 (an advocacy
organization for domestic violence
victims); 02-804 (board director of the
Alabama Foster and Adoptive Parents
Association).
See, e.g., Arizona Advisory Opinion 97-06
(although a domestic violence commission’s
expression of intolerance toward criminal
behavior should not disqualify membership on
the commission, a judge may not be a member
where the commission is agenda-driven and
advocacy-oriented). Cf. Advisory Opinion 98-
691 (service on Alabama Model Code on
Domestic Violence Project Committee, to
recommend improvements in Alabama laws to
bring those laws into better conformity with the
Model Code, is permissible if the participation
does not interfere with the proper performance
of judicial duties or create doubt on the judge’s
capacity to decide impartially any issue before
him); Advisory Opinion 87-294 (diversity of the
task force on victims and victims’ rights, which
included members of the criminal defense bar,
and the fact that the task force was designated to
protect the rights of the accused while also
evaluating current laws and efforts relating to
victims and victims’ rights negate the perception
that the task force was fundamentally an
advocacy group for a particular single interest);
New York Advisory Opinion 95-34 (a judge
may participate in a domestic violence task force
that is comprised of members of both law
enforcement and public defenders and focuses
on the manner in which cases are handled rather
than on the prosecution of such cases or
advocacy on behalf of the victims of domestic
violence who are involved in court matters).
As noted in Advisory Opinion 07-885, the goal
of ending domestic violence is laudable and the
organizations that are striving toward that goal
are exemplary. Certainly, the same applies to
the goal of combating domestic violence and
sexual assault. Although the Commission fully
appreciates that a judge’s participation could
serve his community, “[t]he judicial activities of
a judge take precedence over his other
activities.” Canon 3. A judge must make every
effort to avoid giving the appearance
of a predisposition in matters that are likely to
come before him and of alignment with an
advocacy organization and to avoid participation
in activities or matters that may otherwise cause
his disqualification. Advisory Opinions 06-871.
Based on the stated general goal of the task
force, the Commission advises that the judge’s
participation in or affiliation with the proposed
task force would create an adverse reflection on
his impartiality. The Commission notes that
nothing in the canons prohibits a judge from
providing information about the judicial system
or speaking on topics relating to the
improvement of the law, the legal system, and
the administration of justice, Canon 4. This may
be accomplished however without the judge’s
membership on the task force.
REFERENCES
Alabama Canons of Judicial Ethics, Canons 1,
2A, 3, 4, 5, and 5B, and Commentary, Canon
5B.
Rules of Procedure of Judicial Inquiry
Commission, Rule 17.
Alabama Advisory Opinions 07-885, 06-871,
02-804, 00-750, 98-691, 95-577, 87-294, 87-
293.
Arizona Advisory Opinion 97-06.
New York Advisory Opinions 06-108 & 95-34.
_________
This opinion is advisory only and is based on the
specific facts and questions submitted by the
judge who requested the opinion pursuant to
Rule 17, Rules of Procedure of the Judicial
Inquiry Commission. For further information,
contact the Judicial Inquiry Commission, P.O.
Box 303400, Montgomery, Alabama 36130-
3400; tel.: (334) 242-4089.