Opinion 16-47

May 5, 2016

Digest:         A non-judge who is a judicial candidate in his/her window period may not serve on a local bar association’s screening panel evaluating applicants for appointment to state or federal judicial office.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.0(S); 100.5(A)(1); 100.5(A)(1)(i); 100.5(A)(1)(c), (e); 100.5(A)(2); 100.5(A)(4)(a); Opinions 16-90; 12-97; 12-84/12-95(B)-(G); 11-64; 08-160; 07-130; 00–124; 00-64; 98-142; 98-123; 96-117; 93-22; 91-94; 91-72; 89-116/89-121; 88-100; 87-24.

Opinion:

         A non-judge candidate for elective judicial office asks if he/she may serve on a bar association’s judicial screening panel to review qualifications of persons seeking appointment to state or federal judicial office. As a panelist, he/she would participate in “vetting” such applicants for the bar association’s “endorsement.”

         A judge or non-judge candidate for elective judicial office must “act in a manner consistent with the impartiality, integrity and independence of the judiciary” (22 NYCRR 100.5[A][4][a]) and may not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]; 100.5[A][1][i]). A judicial candidate may participate in his/her own campaign during the applicable window period (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]; 100.0[Q] [defining “window period”]), but must not publicly endorse or publicly oppose, other than by running against, another candidate for election to public office (see 22 NYCRR 100.5[A][1][e]; 100.0[A] [“A ‘candidate’ is a person seeking selection for or retention in public office by election.”]).

         As the Committee has recognized, “persons seeking judicial office generally must, as a practical matter, submit their qualifications for the review of one or more screening panels” (Opinion 11-64). Accordingly, a judge or non-judge candidate for elective judicial office may appear before a local bar association’s or political party’s screening panel during his/her window period (see Opinions 12-97; 12-84/12-95[B]-[G]; 11-64).

         However, “a judge may not sit on a political party’s interviews of judicial or non-judicial candidates for elective office even if requested to do so by the party and the judge is him/herself a candidate for judicial office” (Opinion 00-64). Plainly, a judge or non-judge judicial candidate’s participation in a political party’s candidate screening interviews, other than as the candidate who is being evaluated, “goes well beyond the scope of permissible political activity” and “could be perceived as ‘publicly endorsing or publicly opposing’ various candidates for public office” (id.; see also generally 22 NYCRR 100.5[A][1][e]; Opinions 98-142 [a successful non-judge candidate, who has not yet assumed judicial office, may not support a former aide’s legislative campaign]; 91-94 [a non-judge judicial candidate may not comment on the qualifications of other candidates on his/her slate]; 87-24 [a non-judge judicial candidate may not endorse other candidates]).

         The Committee has further advised that sitting judges may not be involved in a bar association’s ranking or evaluation of candidates for elective judicial office (see Opinions 07-130; 91-72; 89-116/89-121; 88-100) and may not, at the request of a judge seeking reappointment, submit a supporting letter to the appointing authority (see Opinions 98-123; 96-117).

         Nonetheless, while a sitting judge may not write a letter “on behalf of a person seeking reappointment on the judge’s own initiative or at the request of the candidate” (Opinion 00-124), he/she may respond to a written or oral request from a screening panel in connection with the selection or nominating committee concerning another judge’s reappointment (see Opinions 00-124; 98-123). A judge may also respond to an inquiry from the Independent Judicial Election Qualification Commission concerning a judicial candidate (see Opinions 16-90; 07-130); or to “a ‘mass e-mail’ that a bar association judicial screening committee sends to the general membership of the bar association asking for comments about the qualifications of an attorney who is a potential candidate for judicial office” (Opinion 08-160). The Committee has likened such communications to a permissible letter of reference, stating that a “judge should draw from his/her personal knowledge of the potential judicial candidate, gained from the attorney’s appearances in the judge’s court” and “neither urge approval or disapproval of a candidate” (Opinion 08-160).

         The Committee has also advised that a judge may contact the United States Senate Judiciary Committee sua sponte to convey “facts personally known” concerning “the fitness of a nominee under consideration for an appointive [federal] judgeship” (Opinion 93-22). In so doing, the Committee cautioned, the judge must “convey only factual information to the Senate Judiciary Committee” to avoid any appearance that he/she “is engaging in public political comment about the judicial selections of the executive branch” (id.).

         This inquiry presents new twists. First, this judicial candidate is not a judge, and second, he/she seeks to participate in a bar association’s screening panel to rate or endorse applicants seeking appointment to local or federal judicial office. The latter distinction is potentially significant, as an individual seeking a judicial appointment is not a “candidate” under the Rules (see 22 NYCRR 100.0[A]).

         In the Committee’s view, a non-judge who is in his/her window period for election to judicial office should not participate in screening individuals who are seeking appointive judicial office, even for a non-partisan bar association. Participation on a bar association’s judicial screening panel involves direct, prominent, systematic and active involvement in the rating and evaluation process. Unlike a person who responds to a bar association’s request for information about an applicant based on personal knowledge, screening panel participants must review and analyze all credentials and comments submitted to the panel. Presumably, panelists will confer and frankly discuss the apparent strengths and weaknesses of all applicants, even complete strangers. Thus, if a judicial candidate participates as a panelist during his/her window period, there may be a public perception of a possible “quid pro quo” – that is, the judicial candidate may be seen as attempting to gain political support and/or a favorable rating by participating in rating other individuals. These circumstances present a reasonably clear impression that a judicial candidate’s participation in this screening process could be perceived as compromising the objectivity of judicial evaluation standards (see 22 NYCRR 100.5[A][4][a]; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]) and even engaging in impermissible political activity (see 22 NYCRR 100.5[A][1][e]; Opinions 00-64; 93-22).

         Therefore, a non-judge judicial candidate may not serve on a local bar association’s screening panel that evaluates applicants for appointment to state or federal judicial office.