Opinion 23-158
December 14, 2023
Digest: A judge who assumes judicial office on an apparently unequivocal campaign pledge to incarcerate offenders, exclude drug dealers from the community, ensure maximum sentencing of repeat offenders, and protect victims of domestic violence, thus effectively promising to aid law enforcement rather than apply the law neutrally and impartially in such matters, is disqualified during his/her entire judicial term from: (1) all criminal cases; (2) cases in any court involving allegations of domestic violence; (3) all Vehicle and Traffic Law matters; and (4) cases in any court involving purported drug dealers. Disqualification on this ground is not subject to remittal.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(4); 100.3(B)(7); 100.3(E)(1); 100.3(E)(1)(f); Opinion 19-47; Matter of Watson, 100 NY2d 290 (2003).
Opinion:
During a recent judicial campaign, the inquirer promised, if elected, to: (1) keep drug dealers off our streets and out of our hotels; (2) incarcerate offenders and protect victims of domestic violence; and (3) assure repeat offenders are sentenced to the full extent of the law. These statements were made in the inquirer’s written campaign literature without qualifiers or caveats, and were expressly identified as pledges or promises. Further, they were made in the context of the candidate’s law enforcement and/or prosecutorial background. The inquirer now asks if these campaign promises will require disqualification under Section 100.3(E)(1)(f).
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]) and “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]). A judge is disqualified in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in instances where:
(f) the judge, while a judge or while a candidate for judicial office, has made a pledge or promise of conduct in office that is inconsistent with the impartial performance of the adjudicative duties of the office or has made a public statement not in the judge’s adjudicative capacity that commits the judge with respect to (i) an issue in the proceeding; or (ii) the parties or controversy in the proceeding.
The present inquiry appears to be a matter of first impression for us. We note initially that members of the public who may appear before the judge, much like those who may have voted for or against the inquirer on election day, have no information about the inquirer’s subjective intent. They can only review and draw inferences from the actual statements made and circulated in the inquirer’s campaign literature. In our view, the inquirer’s campaign promises, seen as a whole, create a distinct impression that he/she would, if elected, aid law enforcement rather than apply the law neutrally and impartially (cf. Matter of Watson, 100 NY2d 290, 296 [2003] [judge invited voters to “put a real prosecutor on the bench”]).
In our view, the wording of these campaign promises creates a clear impression that the inquirer was promising to “incarcerate offenders” and to ensure maximum sentencing of “repeat offenders.” Both in criminal cases and Vehicle and Traffic Law matters, there is typically a statutory range of permissible sentences. We have said that adjudication of such matters requires “individualized consideration” taking into account all relevant legal factors (Opinion 19-47). Indeed, we advised that a judge may not have a court clerk enter the proposed fine on a motorist’s mail plea from a fixed schedule of fines developed by the judge, where the underlying fixed schedule “pre-selects specific fines from the statutory range and therefore is likely to create an appearance that the judge has pre-judged certain categories of cases without individualized consideration of relevant legal factors” (id.). Here, likewise, the inquirer’s campaign promises appear to commit him/her to impose incarceration and/or maximum sentencing where possible, as if the inquirer has pre-judged such matters, especially with respect to “repeat offenders.” We therefore conclude that the inquirer’s impartiality “might reasonably be questioned” in all criminal cases and in all Vehicle and Traffic Law matters based on the apparent promises he/she made about incarceration and maximum sentencing.
Moreover, the inquirer’s campaign promises also appear to single out two classes of people who would be treated differently from others that might appear before the court. That is, the inquirer promised unfavorable treatment for “drug dealers” (creating an impression the judge would work to exclude purported drug dealers from the community) and favorable treatment for “victims of domestic violence” (apparently singling them out for special protection). Given that a judge must “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]), we conclude the judge’s impartiality “might reasonably be questioned” on the basis of this promise as well, with respect to cases in any court involving purported drug dealers or allegations of domestic violence.[1]
We do not see how the judge can meaningfully disavow express campaign promises. Accordingly, on these facts, remittal of disqualification is not available.
We conclude the inquiring judge is disqualified during his/her entire judicial term from: (1) all criminal cases; (2) cases in any court involving allegations of domestic violence; (3) all Vehicle and Traffic Law matters; and (4) cases in any court involving purported drug dealers. Disqualification on this ground is not subject to remittal.
[1] The question we ask ourselves here is: Would a reasonable person, after reading the inquirer’s campaign promises, believe that those accused of domestic violence or suspected of selling drugs would receive a fair hearing from the inquirer?