Opinion 00-64

June 13, 2000

Digest:         A judge, who has direct, personal knowledge that another judge had sat in on a political party's interviews of candidates for judicial and non-judicial offices and then informed the inquiring judge that he/she was not going to receive the party's nomination for judicial office, should report such facts to the State Commission on Judicial Conduct.

Rule:            22 NYCRR 100.3(D)(1); 100.5;100.5(A)(1); 100.5(A)(1)(b); 100.5(A)(1)(d), (e); 100.5(A)(2); 100.5(A)(2)(i),(ii); Opinions 97-84 (Vol. XVI); 92-42 (Vol. IX).

Opinion:

The inquiring judge, who is a candidate for elective judicial office, had been seeking the nomination of a political party. While waiting to be interviewed by the party's screening committee, a state legislator, also running for election, told the judge that another judge of the same court (who was seeking higher judicial office) had sat in on the interviews of the legislative candidates. When the inquirer's turn came to be interviewed, the judge was sitting in the interview room and his/her presence was noted by the panel chair. The judge said nothing during the interview of the inquirer and remained in the room after it was concluded. Upon leaving the building, the judge stopped the inquirer and stated that he/she would not be receiving the party's nomination since the party had previously agreed to nominate the candidate of another political party and that he/she had told the panel that they should not have had the screening committee interview the inquiring judge since they had no intention of endorsing the inquirer's candidacy.

A few days later the inquiring judge received through inter-office mail a copy of a letter from the judge in question to the political party (on the judge's personal stationery), expressing thanks "for inviting me to observe the candidates' screening session on June 3, 2000." After some commendatory words about the interviewers' conduct, the judge went on to express displeasure with the party's having invited for an interview the opponent of a candidate it had already voted to endorse, and suggested some changes in the process.

The inquiring judge seeks the Committee's advice on two questions. First, "(i)s it permissible for a sitting judge to sit in on interviews of judicial and other candidates by a political party . . .? Secondly, if this was inappropriate conduct, am I under an obligation to report it and if so, to whom?"

In the opinion of the Committee, a judge may not sit in on a political party's interviews of judicial or non-judicial candidates for elective office even if requested to do so by the party and the judge is himself or herself a candidate for judicial office. The extent of permissible participation of a candidate in the political process is set forth in section 100.5(A)(2) of the Rules Governing Judicial Conduct, which, in its entirety, reads as follows (22 NYCRR 100.5[A][2]):

(2) A judge or non-judge who is a candidate for public election to judicial office may participate in his or her own campaign for judicial office as provided in this section and may contribute to his or her own campaign as permitted under the Election Law. During the Window Period as defined in subdivision (Q) of section 100.0 of this Part, a judge or non-judge who is a candidate for public election to judicial office, except as prohibited by law, may:

(i) attend and speak to gatherings on his or her own behalf, provided that the candidate does not personally solicit contributions;

(ii) appear in newspaper; television and other media advertisements supporting his or her candidacy, and distribute pamphlets and other promotional campaign literature supporting his or her candidacy;

(iii) appear at gatherings, and in newspaper, television and other media advertisements with the candidates who make up the slate of which the judge or candidate is a part;

(iv) permit the candidate's name to be listed on election materials along with the names of other candidates for elective public office;

(v) purchase two tickets to, and attend, politically sponsored dinners and other functions even where the cost of the ticket to such dinner or other function exceeds the proportionate cost of the dinner or function.

It is apparent that the activity described goes well beyond the scope of permissible political activity. The event in question was not a "gathering" which the judge was attending and speaking to on his or her behalf (22 NYCRR 100.5[A][2][i]), nor was the judge attending a politically sponsored dinner or function as to which a candidate may purchase two tickets. It was a political meeting to select candidates for endorsement for a variety of elective offices. At issue was not the judge's own nomination but the evaluation of candidates for other elective offices. But, no judge, whether a candidate or not, should involve himself or herself in the internal workings of a political party, especially where the issue is the party's endorsement of candidates for elective office. At most, a judge may be a member of a political party (22 NYCRR 100.5[A][1][b]), not its adviser. In allowing himself or herself to participate in the party's nominating process, the judge could be perceived as "publicly endorsing or publicly opposing" various candidates for public office (22 NYCRR 100.5[A][1][e]) and as participating in the political campaign of others for different elective offices. 22 NYCRR 100.5(A)(1)(d). In short, based on the facts described, and assuming their accuracy, it is our view that such conduct constitutes impermissible political activity in contravention of section 100.5 of the Rules Governing Judicial Conduct.

Faced with knowledge of apparent misconduct by another judge, the inquirer seeks guidance as to the application of section 100.3(D)(1) of the Rules Governing Judicial Conduct, which states (22 NYCRR 100.3[D][1]):

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of this Part shall take appropriate action.

In Opinion 97-84 (Vol. XVI), the Committee recounted its earlier opinions in the area of judicial responsibility when confronted with possible judicial or professional misconduct, and explained how the recently promulgated revision of the Rules Governing Judicial Conduct essentially "codifies the test of substantiality as enunciated by the Committee in its opinions interpreting the prior rule." Opinion 97-84 (Vol. XVI). In particular, the Committee cited Opinion 92-42 (Vol. IX), which stated:

As stated in prior opinions of the Advisory Committee on Judicial Ethics, a judge must determine whether the specific conduct at issue likely constitutes a "substantial" violation of professional or judicial ethics. If it does, he or she should report the conduct; if it does not, there is no ethical obligation to report, and the decision is at the judge's discretion. Conduct which is improper but not substantial or "misconduct," thus not requiring reporting to the Commission on Judicial Conduct, still appropriately may be reported to the administrative judge. Advisory Committee on Judicial Ethics Opinion 91-36, Vol. VII.

We are of the opinion that "appropriate action" in this instance means that it is advisable that the facts known to the judge should be reported to the State Commission on Judicial Conduct. This is an instance where the inquiring judge has direct, personal knowledge that another judge has overtly engaged in impermissible political activity, of the substance and nature described above. In our view, any inquiry into and assessment of the significance of such conduct rests with the Commission on Judicial Conduct. The inquiring judge is advised to act accordingly.