Opinion 98-46

April 23, 1998

NOTE: The Chief Judge’s rules concerning political activities of nonjudicial court employees now appear at 22 NYCRR 50.5.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         A Court Attorney-Referee may not serve as a delegate to a judicial nominating convention.

Rules:          22 NYCRR 100.5(A)(1)(c),(g); 100.6(A); Opinions: 96-97(Vol. XIV); 96-73/96-80(Vol. XIV); 95-119(Vol. XIII); 94-44(Vol. XII); 88-44(Vol. II).

Opinion:

         A Court Attorney who is the president of an association of Court Attorneys presents the following inquiry concerning Court Attorney-Referees:

Several of our Court Attorney-Referees have asked whether they can be delegates to the annual Judicial Nominating Conventions for Supreme Court Justices. This question arises with respect to §25.39(a) of the Rules of the Chief Judge, which by its language specifically permits UCS employees to do so.

         On their behalf, I ask if it is proper for them to serve as such delegates.

         In the opinion of the Committee it is not proper for Court Attorney-Referees to serve as delegates to the annual Judicial Nominating Convention for Supreme Court justices. That answer is derived directly from our Opinion 95-119(Vol. XIII), where the Committee addressed a related question concerning political activities of Special Referees. The Committee stated:

The inquirer is a full-time employee of the Unified Court System whose actual job title is "Court Attorney-Referee". This, in fact, is the usual situation with persons who are called Special Referees. The Title Standard promulgated for that position by the Office of Court Administration makes it clear that such persons may be exercising a quasi-judicial function in that they are authorized to conduct hearings, take testimony and issue findings of facts and confidential opinions. Accordingly, the Committee is of the opinion that Special Referees are persons who exercise quasi-judicial duties in the Unified Court System. It therefore follows that the inquirer is bound by the proscription against partisan political authority set forth in section 100.7 of the Rules Governing Judicial Conduct, and thus may not serve on the Committee to re-elect a candidate for public office.

         Section 100.6(A) of the Rules Governing Judicial Conduct requires that persons who perform judicial functions within the judicial system are bound by the Rules Governing Judicial Conduct, "in the performance of their judicial function and otherwise shall so far as practical and appropriate use such rules as guides to their conduct." Prior to the issuance of Opinion 95-119(Vol. XIII), the Committee had concluded that quasi-judicial officers such as Judicial Hearing Officers and Family Court Hearing Examiners are bound by the proscription against political activity now specified in section 100.5(A) of the Rules See e.g. Opinions 96-97(Vol. XIV); 94-44(Vol. XII); 88-44(Vol. II). Such limitations are not superseded or rendered nugatory by section 25.39(a) of the Rules of the Chief Judge.

         A political party's Judicial Nominating Convention is a political gathering, and just as a judge is prohibited from attending, even as a spectator, a nominating convention for President of the United States (Opinion 96-73/96-80[Vol. XIV]), so, too, is a Court Attorney-Referee bound by the same restrictions pertaining to partisan political activity and attendance at political gatherings. Thus, in the Committee's opinion, a Court Attorney-Referee should not serve as a delegate to a political party's Judicial Nominating Convention.