Joint Opinion 04-143 and 05-05

January 27, 2005

Digest:         Judges seeking nomination for re-election may meet with the party leaders and the party’s executive officer to discuss such nomination, regardless of whether either or both individuals are under criminal investigation or have been indicted.

Rule:            22 NYCRR 100.5; Opinions 91-44 (Vol. VII); 93-55 (Vol. XI); 97-65 (Vol. XV); 99-155 (Vol. XVIII); 02-34.

Opinion:

         Two judges who have announced their candidacy for re-election and are seeking nomination for their re-election ask whether it is permissible to meet with the party’s leadership and/or executive officer to discuss the nomination in light of the fact that one or both of the individuals may be under criminal investigation, or has been indicted. Assuming that such meetings are permissible, it is also asked whether there are any limitations that may apply, and also what is the accepted practice or advisable method for a judge to communicate with local political party leaders in expressing the judge’s intention to seek that particular party’s nomination or endorsement.

         The Committee previously opined that a judge may meet with the leaders of a local political party for purposes of discussing the judge’s candidacy for re-election or a different judicial office, or a non-judicial office. Opinions 91-44 (Vol. VII), 93-55 (Vol. XI), 97-65 (Vol. XV), 02-34. Preliminary discussions with political leaders or officials about a possible candidacy are not proscribed political activities under section 100.5 of the Rules Governing Judicial Conduct. Opinion 97-65 (Vol. XV). The legitimacy of that activity is not altered by the possibility of criminal charges being filed against such individuals. For, as with every other person, the party leader and the executive director are presumed innocent of such charges until proven guilty in a court of law. Therefore, the pendency of a criminal investigation or indictment against party leaders does not pose any ethical impediment that would preclude the judges from engaging in any discussions with such individuals for purposes of pursuing the endorsement of that political party.

         Guidance is also requested as to what is the accepted practice or advisable method for an incumbent judge to communicate with local political party leaders in expressing the judge’s intention to seek that particular party’s nomination or endorsement for re-election. The Rules Governing Judicial Conduct do not mandate any particular approach, and none of the earlier opinions of the Committee provides special guidance on the issue. Notwithstanding, the Committee would caution judges against the use of official court stationery in any correspondence related to the re-election campaign, even if it is intended that such stationery would bear the notation “personal and unofficial.” Opinion 99-155 (Vol. XVIII).