Opinion 09-180

September 10, 2009

Digest:         A judge may attend a political party caucus held for the purpose of nominating and voting for political candidates and may vote for the candidate(s) of his/her choice even if voting is accomplished other than by secret ballot.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5; 100.5(A)(1)(ii); Opinion 90-153 (Vol. VI); 90-139 (Vol. VI).

Opinion:

         A judge asks whether he/she may attend a party caucus and vote for candidates for office to represent the party in a municipality’s general election. The judge advises that the notice announcing the caucus invites and permits all registered members of the political party to participate and vote for candidates. The judge further advises that voting may be accomplished by secret ballot, by a show of hands, or by some other method. Therefore, the judge asks the Committee to re-consider its prior opinions indicating that a judge may attend a caucus and vote only if the vote is accomplished by secret ballot.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 22 NYCRR 100.2[A]). In general, judges may not engage in political activity except as otherwise provided by law and the Rules Governing Judicial Conduct (see 22 NYCRR 100.5). The Rules specifically provide that a judge may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]).

         In Opinions 90-139 (Vol. VI) and 90-153 (Vol. VI), the Committee advised that a judge may attend a political party caucus held for the purpose of nominating and voting for political candidates, so long as the judge’s attendance does not convey a preference for a particular candidate and voting is by secret ballot.

         The Committee now is of the view that a judge may attend a political party caucus held for the purpose of nominating and voting for political candidates and cast his/her vote even if voting is accomplished other than by secret ballot because the Rules Governing Judicial Conduct authorize a judge to vote, without any further qualification (see 22 NYCRR 100.5[A][1][ii]). Therefore, Opinions 90-139 (Vol. VI) and 90-153 (Vol. VI) are modified to the extent that they are inconsistent with this Opinion.