Opinion 02-113

October 24, 2002

Digest:         A judge may serve on a Merit Selection Panel to identify qualified candidates to fill the position of Magistrate Judge on the United States District Court, but may not participate in any political activity or lend the prestige of judicial office to advance the private interests of others.

Rule:            22 NYCRR, 100.2; 100.4(C)(2) (a); 100.5 (A)(1);100.5 (A)(1)(e); Opinions 88-100 (Vol. II); 89-116/89-121 (Vol. IV); 94-37 (Vol. XII).

Opinion:

         A judge asks whether it is ethically permissible to accept appointment by a United States District Court to serve on a Merit Selection Panel. The purpose of the panel is to identify qualified candidates to fill the position of United States Magistrate Judge on the United States District Court.

         Pursuant to the Rules Governing Judicial Conduct, a full-time judge is prohibited from accepting appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice. 22 NYCRR 100.4(C)(2)(a).

         In prior opinions, this Committee has considered the ethical propriety of a judge’s involvement in recommending or evaluating candidates for judicial office. In Opinions 88-100 (Vol. II) and 89-116/89-121 (Vol. IV), the Committee concluded that a judge may serve as a member or officer of a local bar association that ranks judicial candidates, but cannot himself or herself participate in ranking candidates because judges are precluded from engaging, either directly or indirectly, in prohibited political activity, including publicly endorsing another candidate for elective public office. 22 NYCRR 100.5 (A)(1);100.5 (A)(1)(e). The Committee further advised that to avoid even the appearance of impropriety as required by section 100.2 of the Rules Governing Judicial Conduct, a judge who is a member of a bar association that ranks judicial candidates must ask the bar association to make clear that the judge has not participated in such rankings. Similarly, in Opinion 94-37 (Vol. XII), this Committee advised that a judge may not serve on a Mayor’s Committee on the Judiciary, the purpose of which is to recommend candidates to the Mayor for appointment to the Family and Criminal Courts, and interim appointments to Civil Court. In the Committee’s view, such service would inevitably be perceived as participation by a member of the judiciary in a political process, which is prohibited by section 100.5 of the Rules Governing Judicial Conduct.

         Because service on a Merit Selection Panel to identify persons who are best qualified to fill the position of United States Magistrate Judge for a United States District Court is distinguishable from both a bar association that ranks judicial candidates and a Mayor’s Committee on the Judiciary, we conclude that the inquiring judge may accept the proffered appointment. Evaluation and recommendation to the United States District Court of qualified candidates for the position of United States Magistrate Judge directly relates to the improvement of the legal system and the administration of justice, and therefore is an extra-judicial activity permitted by the Rules Governing Judicial Conduct. 22 NYCRR 100.5 (A)(1);100.5 (A)(1)(e). In addition, there is no significant risk that as a member of a Merit Selection Panel the judge could appear to be involved in prohibited political activity. Both the federal statute and the Judicial Conference regulations that govern the Merit Selection Panel emphasize the non-political nature of the appointment. Further, a United States MagistrateJudge is appointed by United States District Court judges who have lifetime tenure, and not by elected executive or legislative officials. Finally, the candidates to be evaluated and recommended to the Court are eligible for appointment to a judicial office in a jurisdiction other than that in which the inquiring judge presides.

         While the inquiring judge may accept appointment to the Merit Selection Panel, the judge must be sure to avoid any appearance that he/she is involved in political activity or that he/she is lending the prestige of judicial office to advance another’s private interests.