Can a Judge Be Impartial and Passionate in Domestic Violence Matters?

Vol. 53 No. 2

Marla N. Greenstein is Executive Director of the Alaska Commission on Judicial Conduct, a position she has held since 1989.  Ms. Greenstein served from 1996-97 as Chair of the ABA Judicial Division Lawyers Conference.  Ms. Greenstein also serves as Secretary of the Board of the Association of Judicial Disciplinary Counsel. She is a graduate of Loyola University of Chicago School of Law and holds an undergraduate degree in American Government and Philosophy from Georgetown University.

Confronting the complex issues in domestic violence, judges are often forced into challenging roles. The articles in this issue illustrate the passion and creativity that are necessary to sort through the many facets of these cases. We are reminded that often in these cases the victim recants or is extremely reluctant, children are often affected, and judges may handle all related proceedings. In addition, law enforcement and lawmakers may seek judicial input in improving their response to this all-too-common social issue. All these factors combine to create tensions between a judge’s traditional role and the new one that demands more active involvement by our judges.

Addressing crimes of domestic violence requires a level of patience and control that may be difficult given the passions of the parties and the issues. It is therefore not surprising that temperament issues arise in these court proceedings. Judges have been disciplined for improper comments such as

  • “You want to drop these charges now after what he’s accused of doing? Why would you want to subject your children to that, or yourself, to that type of person?”1
  • “I am going to nail [defendant’s] ass to the wall.”2
  • During a sentencing, referring to the victim as “an ‘idiot’” and negatively characterizing “her motivations.”3

While all the above judges stepped over a line, their improper responses illustrate the need for all judges confronting issues of domestic violence to balance their passion with the necessary impartiality that fairness demands. These same needs for balance arise when judges are asked to assist in addressing domestic violence outside the courtroom.

A review of recent advisory opinions shows how difficult and prevalent these challenges are.

Nevada had a law that authorized the state attorney general to organize a “multidisciplinary team” to review the death of a victim of domestic violence for various public policy purposes. A judge then asked whether a judge could serve as a member of that team. In a thorough opinion that looked at various earlier advisory opinions across the country addressing crime prevention committees, the answer was a clear “no.” Serving on a domestic violence death review team “would likely create an appearance of bias in favor of victims which would appear to a reasonable person to undermine the judge’s impartiality.”4

General educational efforts, however, may be viewed more favorably. In New York, a judge was allowed to work with other agencies and lawyers to organize and co-sponsor a Continuing Legal Education program “addressing various issues relating to family violence for lawyers and members of the courthouse staff.” Noting that the program would be open to anyone who wished to attend and the admonishment that judges should not participate in seminars that are “so one-sided as to create an appearance that the judge’s neutrality may be compromised,” the proposed CLE would address both victim and offender issues and would include a cross-section of groups involved in domestic violence issues.5

Appearances of partiality can be created by well-intentioned groups seeking to honor the good work of judges. In another New York opinion, a judge was clearly advised that the judge may not accept an award from a “violence intervention program” and may not appear at a “candlelight vigil for those affected by domestic violence.” Noting several similar prior advisory opinions, the committee acknowledged the laudable work of the program but also acknowledged the compromised appearance of impartiality that the award would create. Appearing at the vigil and accepting the award would suggest that the judge “is sympathetic to the plight of victims—when a judge is required to apply—and appear to apply—the law in a completely neutral fashion.”6 A Connecticut opinion citing this New York opinion came to the same conclusion in 2012.7 So, too, Florida concluded that a judge should not attend a “walk-a-thon” for domestic violence victims even if the judge does not participate as a walker.8

To summarize, a judge who hears domestic violence matters must maintain engaged compassion while at the same time ensuring respect and impartiality for all participants. The demands of impartiality are equally important outside the courtroom. While judges should educate and be educated, judges cannot be advocates for anything but a responsive and just court.

Endnotes

1. Determination, In re David A. Prince (N.Y. Comm’n on Judicial Conduct Dec. 18, 2013).

2. In re Reese F. Melville (Nev. Comm’n on Judicial Discipline Apr. 17, 2012).

3. Disposition of Complaint 13-178, Judge Steven Conn (Ariz. Comm’n on Judicial Conduct Dec. 11, 2013).

4. Advisory Op. JE11-007 (Nev. Standing Comm. on Judicial Ethics & Election Practices July 22, 2011).

5. N.Y. Op. 10-166 (Advisory Comm. on Judicial Ethics Oct. 7, 2011).

6. N.Y. Op. 10-59 (Advisory Comm. on Judicial Ethics Apr. 22, 2010.)

7. Conn. Op. 2012-29 (Comm. on Judicial Ethics Oct. 3, 2012).

8. Fla. Op. 2013-18 (Ethics Advisory Comm. Oct. 16, 2013).

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