Opinion 22-115

September 8, 2022

Digest:       A judge who has personal knowledge that another judge responded to a law enforcement agency’s arrest announcement by publicly praising the agency for “solv[ing] this crime,” and also knows that the arrested individual will likely be brought before the other judge for proceedings in the matter, must report the other judge to the Commission on Judicial Conduct.

Rules:        22 NYCRR 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.3(D)(1); Opinions 21-19; 19-165; 17-48; 14-39; 10-175; 04-143/05-05.

Opinion:

         The inquiring judge recently saw a comment from another judge (Judge B) posted on the social media page of a local law enforcement agency. Specifically, Judge B publicly commented on a post about an arrest in a high-profile criminal case that took place within Judge B’s jurisdiction as follows: “Great work by all involved to solve this crime. Thanks for all that our law enforcement agencies throughout this county do to keep us safe.” While Judge B did not identify their judicial status, another social media user did. Because the underlying crime took place within Judge B’s jurisdiction, it appears that Judge B would ordinarily preside over certain stages of the resulting criminal case. The inquiring judge was concerned that Judge B’s comments “sound like a predetermination of guilt” in a matter that is likely to come before Judge B, and “could potentially taint a potential jury pool.” Accordingly, the judge reported the conduct to a supervising or administrative judge. Judge B’s comment was removed a short time later. Now, the inquiring judge asks if further action is required.

         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]). Therefore, a judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]). A judge also must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]; see also 22 NYCRR 100.0[V] [an impending proceeding is “one that is reasonably foreseeable but has not yet been commenced”]).

         A judge has wide latitude to evaluate whether the two prongs (i.e. “substantial likelihood” and “substantial violation”) are met and, if so, to determine what action is “appropriate” under the circumstances (see Opinion 19-165 [citations omitted]). That is, the judge who has observed the offending behavior usually has discretion to determine, for example, that it is appropriate to counsel the other judge or to report the conduct to an administrative judge, rather than filing a disciplinary complaint (see id.). However, as we stated in Opinion 17-48 (citations omitted):

There have nonetheless been instances where the facts described in an inquiry make clear the inquiring judge has sufficient information to meet the initial “substantial likelihood” threshold and the conduct described, if true, clearly calls into question another judge’s fitness to continue in office. In such instances, the Committee has generally advised that “appropriate action” necessarily involves reporting the conduct to the Commission on Judicial Conduct for inquiry and investigation.

         The two-prong test is clearly met here on the facts set forth in the inquiry. The “substantial likelihood” prong is satisfied because the inquiring judge personally viewed Judge B’s publicly posted comments on social media. The “substantial violation” prong is also met where, as here, the inquiring judge has concluded that Judge B’s comments “sound like a predetermination of guilt” in a matter that is likely to come before Judge B, and “could potentially taint a potential jury pool.”

         Accordingly, since the two-prong test is met, the sole issue for our consideration is what constitutes “appropriate action” under the circumstances (see 22 NYCRR 100.3[D][1]). While a judge ordinarily has discretion to make this determination, sometimes an inquiry describes alleged misconduct that, if true, seriously calls into question a judge’s fitness to continue in office and therefore, at the very least, warrants an investigation by the Commission on Judicial Conduct (see e.g. Opinions 21-19; 10-175). In such instances, we have required reporting (id.).

         If the facts occurred as set forth in the inquiry, it appears that Judge B responded to a law enforcement agency’s announcement of an arrest within Judge B’s jurisdiction by publicly praising the agency for “solv[ing] this crime.” This is not only a public comment on a “reasonably foreseeable” case (22 NYCRR 100.0[V]; 100.3[B][8]), but it could also, in this specific context, create a public perception that Judge B is biased in favor of law enforcement and/or raise questions about Judge B’s sensitivity to a defendant’s constitutional rights. The defendant’s arrest is not proof of guilt, and “it bears emphasis that individuals under criminal investigation or indictment ‘are presumed innocent of such charges until proven guilty in a court of law’” (Opinion 14-39, quoting Opinion 04-143/05-05). The appearance of impropriety is even greater where, as here, this specific criminal case is almost certain to come before Judge B in the ordinary course. In context, the alleged comment seems to raise very serious questions about Judge B’s “impartiality, fairness, and understanding of a proper judicial role” (Opinion 19-165). That Judge B immediately followed this public comment suggesting a predetermination of guilt in a specific case likely to come before Judge B with a broad expression of gratitude to “our law enforcement agencies throughout this county” for everything they “do to keep us safe” is also troubling.

         As Judge B’s comments, in the specific circumstances described here, appear to raise serious questions about Judge B’s ability to be fair and impartial in criminal matters and/or about Judge B’s appreciation of their fundamental responsibilities as a judge, we conclude the inquiring judge must report the matter to the Commission on Judicial Conduct.