Opinion 03-24

March 6, 2003

Digest:         A judge may not take a leave of absence from his or her judicial office to participate in a candidate’s campaign for elective public office.

Rule:            22 NYCRR 100.5(A)(1)(c); 100.5(B); Opinion 89-126 (Vol. IV).

Opinion:

         A judge asks whether it is permissible for a judge to take a leave of absence from his or her judicial office to participate in a candidate’s campaign for non-judicial elective public office. If the candidate is successful, the judge would resign his/her judicial office to take a position in the candidate’s administration. If the candidate is not successful, the judge would resume his/her judicial duties.

         Section 100.5(A)(c) of the Rules Governing Judicial Conduct prohibits judges from engaging in partisan political activity other than participating in their own campaigns for elective judicial office. In Opinion 89-126 (Vol. IV), this Committee advised that a town justice may not take a leave of absence to campaign for election to the office of town supervisor because such action would frustrate the prohibition in the Rules Governing Judicial Conduct against judges engaging in political activity. (Although not stated, such a leave of absence would also have breached the requirements of the “resign to run” rule as required under Section 100.5(B) of the Rules.) For it is the status of the judge as a judge that gives rise to the applicability of the prohibition against political activities, and not whether the judge is actually performing judicial duties at a particular point in time. Thus, the inquiring judge may not take a leave of absence from his or her judicial office to participate in a candidate’s campaign for elective public office.