Opinion 21-127

September 9, 2021

Digest:         Provided that the judge’s interest in seeking elective nonjudicial office is not announced in advance, a judge need not resign from judicial office before attending a political party’s caucus to nominate candidates and allowing eligible party members to vote on whether to nominate the judge for that office. If the judge receives the nomination, the judge must immediately resign from judicial office.

Rules:          Election Law § 6-108; 22 NYCRR 100.0(A); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(B); Opinions 21-50; 15-176; 09-180; 09-40; 97-65.

Opinion:

 The inquiring town justice has been asked to run for a nonjudicial position in the same town at an upcoming caucus of a political party’s local committee. There will be no announcement of this fact prior to the caucus.¹ The judge asks for guidance on applying the resign-to-run rule on these facts.

         In general, judges may not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]). For example, a judge may “vote and ... identify himself or herself as a member of a political party” (see 22 NYCRR 100.5[A][1][ii]). However, a judge must “resign from judicial office upon becoming a candidate for nonjudicial office either in a primary or in a general election” (22 NYCRR 100.5[B]). The Rules Governing Judicial Conduct define a “candidate” as “a person seeking selection for or retention in public office by election,” whether or not they have secured a political party’s nomination (22 NYCRR 100.0[A] [emphasis added]). With respect to timing, the Rules state: “A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (id. [emphasis added]).

         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 the judge’s choice even if voting is accomplished other than by secret ballot (see Opinion 09-180).

         We have also advised that a judge may privately discuss “the possibility of becoming a candidate” for nonjudicial office with “political party members and governmental officials,” as such limited, non-public discussions constitute “testing the waters” for a possible future run rather than an actual candidacy for the office in question (Opinions 15-176; 09-40; 97-65).

         While a judge who authorizes or knowingly permits their name to appear on a publicly circulated nominating petition as a candidate for nonjudicial office is a “candidate” under the Rules and thus must resign from judicial office (see Opinion 21-50), here no announcement is contemplated prior to the caucus at which the local party committee will select its nominees.

         Provided there is no announcement of the judge’s candidacy prior to the caucus, we believe the judge’s actions in attending the caucus and allowing eligible members to vote on whether to nominate the judge is analogous to “testing the waters.” Accordingly, the judge need not resign before receiving the nomination (see Opinions 15-176; 09-40).

         However, if the judge receives and accepts the nomination, the judge will be “a person seeking selection for [nonjudicial] office by election” (22 NYCRR 100.0[A]), and therefore must immediately resign from judicial office (see Opinions 21-50; 15-176; 09-40).

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¹ It appears that “the time and place or places, and the purpose of the caucus” must be announced in advance, but not necessarily the specific positions to be filled or the names of those who will be considered (see e.g. Election Law § 6-108)