Opinion 21-64

April 29, 2021

Digest:       A sitting judge may reach out to individuals in the judge’s community who may have appropriate contacts, so that the judge may use those contacts to reveal, discuss and explore the judge’s qualifications and interest in appointive judicial office with the appointing authority, political party leaders, and relevant elected officials. However, the judge may not compensate such individuals for their time or assistance with the appointment process.

Rules:        22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.3(A); 100.4(A)(1), (3); 100.5(A)(1); Opinions 15-176; 96-97.

Opinion:

         The inquiring full-time elected judge would like to seek an appointive judicial position in state or federal court. In order to reveal, discuss and explore the possibilities with relevant officials and/or party leaders, the judge asks if it is permissible to reach out for assistance to “people in [the judge’s] community who have the appropriate contacts.” If so, the judge further asks if it is permissible to “compensate [those individuals] for their time.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]) and their extra-judicial activities therefore must not be incompatible with judicial office (see 22 NYCRR 100.4[A][3]) or cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]). In addition, a judge must not “directly or indirectly engage in political activity” except as permitted by the Rules Governing Judicial Conduct (22 NYCRR 100.5[A][1]).

         When a judge is seeking election or re-election to judicial office, the Rules permit certain limited political activity in furtherance of the judge’s own election campaign during a set period of time (see 22 NYCRR 100.0[A] [a “candidate” is one who seeks public office “by election”]; 100.0[Q] [a “window period” exists only for “elective judicial office”]). However, the Rules do not authorize any political activity on the part of judges who are seeking appointment to public office (see e.g. Opinion 96-97). This distinction appears to reflect the idea that a judge seeking election or re-election to judicial office must, of necessity, reach out to a large number of registered voters (most of whom may be complete strangers) to persuade them to vote for the judge. By contrast, in an appointive process, there are relatively few decision-makers who must be persuaded of the judge’s qualifications and merit.

         In effect, this distinction means that a judge who is merely seeking appointment to public office must not attend political fund-raisers or other politically sponsored events, must not establish a campaign committee or otherwise raise funds to solicit public support, and must otherwise abide by generally applicable limitations on judicial speech and conduct, including (but not limited to) the usual restrictions on political activity (see generally Opinion 96-97).

         Nonetheless, a judge seeking appointive public office may “reveal, discuss and explore the possibility” of receiving such an appointment with the appointing authority, political party leaders, and relevant elected officials (Opinions 15-176; 96-97). Such communications may include the judge’s “desire to be considered for appointment” as well as the judge’s experience, background, and overall qualifications (see Opinion 96-97) and may take place by any permissible means, ranging from in-person meetings to written communications (see Opinion 15-176). In general, such communications should be made directly to specific individuals or bodies (including screening panels) whose support or assistance will likely be helpful in the appointment process; the rules do not allow for advertising or outreach to the general public.

         Turning now to the specific questions presented, we believe it is ethically permissible for a sitting judge to reach out to individuals in the judge’s community who may have appropriate contacts, so that the judge may reveal, discuss and explore the judge’s qualifications and interest in appointive judicial office with the appointing authority, political party leaders, and relevant elected officials.

         However, we believe a judge may not compensate individuals for their time or assistance with the appointment process. Such payments do not appear to be a traditional part of the appointment process and could undermine public confidence in the judiciary.