Opinion 96-97

September 5, 1996

Digest:         A Family Court hearing examiner may express to the leadership of a political party the desire to be considered for appointment to fill a vacancy in County Court, but in seeking such appointment may not engage in political activity that is prohibited to members of the judiciary.

Rules:          22 NYCRR 100.0 (A), 100.5(A) and 100.6(A). Opinions 93-41 (Vol. XI), 92-73 (Vol. IX), 89-61 (Vol. III), 88-44 (Vol. II).

Opinion:

         A family Court hearing examiner wishes to seek appointment to fill a vacancy for elective judicial office. The vacancy will occur on January 1. The inquirer asks whether contact may be made to a political party before the vacancy becomes effective, to advise the leadership of that party of the wish to be appointed to the position.

         The Committee notes, initially, that Family Court hearing examiners are persons who “perform judicial functions within the judicial system” [22 NYCRR 100.6 (A) );see Opinions 93-41 (Vol. XI), 92-73 (Vol. IX), 89-61 (Vol. III), 88-44 (Vol. II)], and are therefore to be guided by the Rules Governing Judicial Conduct. The Committee also notes that the Rules Governing Judicial Conduct contain no rule prohibiting the inquirer from contacting a political party and advising that party’s leadership of the inquirer’s desire to be considered for appointment by the Governor to fill a vacancy to an elective judicial office.

         However, the inquirer is not a candidate for judicial office. Section 100.0 (A) of the Rules Governing Judicial Conduct defines a candidate as “a person seeking selection or retention in public office by election.” The vacancy in issue is being filled by appointment, not election. It therefore follows that the permission to engage in certain political activity that is granted to candidates for judicial office as set forth in section 100.5 (A) (2) of the Rules, is inapplicable. Therefore, in the opinion of the Committee, the inquirer should not attend any political functions in connection with the endeavor to be appointed to fill the vacancy nor should he/she engage in any other political activity that is otherwise prohibited to members of the judiciary.