January 24, 2002
Digest: Under the particular circumstances presented, a judge may write a letter of reference on behalf of another judge who is seeking to be designated by the Chief Administrative Judge to a higher judicial position.
Rule: 22 NYCRR 100.2(C); Opinions 00-124; 98-123 (Vol. XVII).
A judge inquires about the propriety of writing a letter of reference to the Chief Administrative Judge on behalf of a sitting judge with whom the inquirer had a close professional relationship, who is seeking appointment to a higher post within the judicial system. The particular appointment involved consists of a judicial designation by the Chief Administrative Judge to a particular post. It is wholly a discretionary act on the part of the Chief Administrative Judge and may be revoked at any time. Both the designations and any revocation require the approval of the presiding justice of the appropriate Appellate Division.
The Committee has previously expressed the view that a judge should not write a letter of reference to a screening committee or similar body on behalf of a judge seeking appointment or reappointment to judicial office unless a request for such a reference is made by the body itself. 22 NYCRR 100.2(C); Opinions 00-124; 98-123 (Vol. XVII). We adhere to this view, but do not believe that it is applicable in the matter before us.
In this instance, there is no screening committee or similar body involved, nor is there any public appointing process or other public involvement in the particular designation. Rather, it is purely an administrative decision made by the Chief Administrative Judge in the exercise of his or her constitutional authority; and no procedure is prescribed for the exercise of that authority in this instance except that approval is to be secured from the presiding justice of the Appellate Division department wherein such service is to be rendered, and, as stated, the designation may be revoked at any time.
The Committee is of the opinion that under these very special circumstances, the judge would not be perceived as improperly intervening in an appointment process. What we have is an administrative action that is confined entirely to the court system itself, and which carries with it none of the public aspects that might otherwise pertain to appointments to judicial office.
Thus, the judge may write such a letter, provided that it is based solely on the judge’s evaluation of the professional qualities of the individual involved in relation to the position sought. Any such letter, must, of course, be marked “Personal and Confidential.”