Opinion 09-40

January 29, 2009

Digest:         A judge may apply to a political party's judicial screening panel to determine his/her qualifications for a particular judicial office at a time when there are no actual, known vacancies for such office provided (1) there is a good-faith reason to believe there will be a vacancy later in the same election cycle; (2) the judicial screening panel process is available to all potential candidates; and, (3) the panel is an official screening panel, such as a standing panel of an existing political party.

Rules:          22 NYCRR 100.0(A), (Q); 100.2; 100.2(A); 100.5(A)(1), (2); 100.5(B); Opinions 08-189; 02-34; 99-14 (Vol. XVII); 97-65 (Vol. XV); 97-45 (Vol. XV); 93-55 (Vol. XI); 91-44 (Vol. VII).

Opinion:

         A judge asks whether he/she may submit an application to a political party's judicial screening panel to determine his/her qualifications for a particular judicial office at a time when there are no actual, known vacancies for such office in the judge’s judicial district. The judge advises that he/she has several reasons to believe there will be one or more vacancies this year. In addition, the judge advises that the screening panel typically announces a very limited time period for interested judges and attorneys to submit their qualifications for review, the screening panel’s rating is valid only for the current election cycle and, if the screening panel does not approve a potential candidate, the political party cannot endorse his/her candidacy.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A sitting judge is prohibited from engaging either directly or indirectly in any political activity except as authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). A judge who is a candidate for judicial office, therefore, may engage in permissible political activity during his/her Window Period (see 22 NYCRR 100.0[Q]; 100.5[A][2]). A candidate is a person seeking selection for or retention in public office by election and becomes a candidate for public office as soon as he/she makes a public announcement of candidacy or authorizes solicitation or acceptance of contributions (see 22 NYCRR 100.0[A]).

         The Committee previously has advised that a judge cannot announce his/her candidacy for judicial office if there is not yet a vacancy in such office (see Opinions 08-189, 99-14 [Vol. XVII], and 97-45 [Vol. XV]). A judge may, however, speak privately to political party leaders or a political party's executive committee regarding a possible judicial candidacy at any time without violating this rule (see Opinions 02-34; 97-65 [Vol. XV]; 91-44 [Vol. VII]). A judge may even appear before the executive committee of a county political party to be interviewed as a possible candidate for District Attorney, even though he/she would need to resign from judicial office on becoming a candidate for such nonjudicial office (see Opinion 93-55 [Vol. XI]; 22 NYCRR 100.5[B]).

         Therefore, in the Committee’s view, a judge who makes a bona fide application to a political party’s screening panel to determine his/her qualifications for a particular judicial office is a permissible step in the process of seeking the party's support for an anticipated judicial vacancy; that is, the judge is merely "testing the waters." The judge in the present inquiry, therefore, may apply to a political party's judicial screening panel to determine his/her qualifications for a particular judicial office at a time when there are no actual, known vacancies for such office in the judge’s judicial district, provided (1) there is a good-faith reason to believe there will be such a vacancy later in the same election cycle; (2) the screening panel process is available to all potential candidates; and (3) the panel is in fact an official screening panel, such as a standing panel of an existing political party. However, contacting community members generally, outside the window period, to learn if they would support the judge's candidacy in a future election, would constitute prohibited political activity (see Opinion 02-34).