Opinion 04-95

September 14, 2004

Digest:         A judge may not use a statement in his/her campaign literature which indicates a predisposition to decide legal matters in a certain way.

Rule:            Matter of Watson; 100 N.Y.2d 290, 763 N.Y.S.2d 219 (2003); 22 NYCRR 100.2(A); 100.5(A) (4)(d)(i); Opinions 96-44 (Vol. XIV); 99-60 (Vol. XVII).

Opinion:

         A judge has inquired whether it is permissible to print some or all of the following statements in his/her campaign literature:

This Court does not negotiate with innocent people or criminals. Defendant is one or the other. Therefore, each count of this indictment, like all other indictments over which the Court presides, will be resolved by verdict, motion or guilty plea.

* * * *

As District Attorney, I ended plea bargaining in our County. As Judge, I ended sentence bargaining.

         At issue is the ethical requirement that a candidate for judicial office “shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” 22 NYCRR 100.5(A) (4)(d)(i).

         In construing that requirement, the Court of Appeals has held that “A candidate’s statements must be reviewed in their totality and in the context of the campaign as a whole to determine whether the candidate has unequivocally articulated a pledge or promise of future conduct or decision making that compromises the faithful and impartial performance of judicial duties.” Matter of Watson, 100 N.Y.2d 290, 298, 763 N.Y.S.2d 219, 223 (2003). In short, “ a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 22 NYCRR 100.2(A).

         Here, the judge proposes to distribute campaign statements which indicate a refusal to participate in the lawful and accepted practice of plea bargaining in criminal cases. Such a position may give the appearance of the judge’s unwillingness to faithfully and impartially discharge his/her duties by refusing to consider the efforts of the defense and the prosecution in resolving a pending criminal matter, without exception.

         A judge should refrain from commenting on any pending or impending cases, or from indicating a predisposition to decide matters in a certain way. 22 NYCRR 100.3(B)(8); Opinions 99-60 (Vol. XVIII); 96-44 (Vol. XIV). While judicial candidates are encouraged to educate the voting public on the qualities and qualifications that would make them the best candidate for the office sought, such literature should be designed to instill confidence in the candidate’s ability to fairly and impartially discharge the duties of the office. The blanket refusal of a judicial candidate to consider a plea bargain proposal under any circumstances could give the appearance of impropriety, by suggesting that the judge is predisposed to decide matters in a certain way, without consideration of all factors permitted by law. To avoid this perception, the judge should avoid any of the proposed statements in campaign literature that will be distributed to the voting public.