September 6, 2007
Digest: A judge may respond to inquiries, from an Independent Judicial Election Qualification Commission or a bar association judicial candidate evaluation committee, about qualifications of candidates for elective judicial office.
Rules: 22 NYCRR 100.5(A)(1)(d), (e); Opinions 02-07; 00-124 (Vol. XIX); 98-123 (Vol. XVII); 94-37 (Vol. XII); 91-72 (VII); Joint Opinion 89-116 and 89-121 (Vol. IV); Opinion 88-100 (Vol. II).
A full-time judge asks if he/she may provide information about candidates for Supreme and County Court elections in response to inquiries from the Independent Judicial Election Qualification Commission for his/her Judicial District, as well as a county bar association judicial candidate evaluation committee. The inquirer notes that two of the candidates had specifically identified him/her to the screening panel as a “reference.”
According to prior opinions, a judge may respond to a written or oral request from a screening panel, selection or nominating committee concerning the reappointment of another judge, but may not recommend the applicant on his/her own initiative, or at the applicant’s request. Opinions 00-124 (Vol. XIX); 98-123 (Vol. XVII).
This Committee has not previously considered, however, whether a judge may respond to a request from a screening panel concerning a candidate for elective judicial office. The issue is whether doing so would impermissibly involve the recommending judge in the political process, a consideration that can be relevant even for appointive positions. Compare Opinion 94-37 (Vol. XII) (judge may not recommend individuals to the Mayor for judicial appointments) with Opinion 02-07 (permitting judge to recommend a colleague to the Chief Administrative Judge for a discretionary administrative designation).
In particular, this Committee previously has advised that judges who are officers or directors of bar associations should avoid any involvement in bar associations’ rating and evaluation of candidates for elective judicial office. Opinion 91-72 (Vol. VII); Joint Opinion 89-116 and 89-121 (Vol. IV); Opinion 88-100 (Vol. II). Part of the rationale for this rule is that a bar association’s ratings may be used by candidates as an “endorsement” their campaign advertising, and a judge is prohibited from publicly endorsing any candidate for public office. Opinion 88-100 (Vol. II); 22 NYCRR 100.5(A)(1)(d), (e).
In the Committee’s view, if a judge responds to inquiries from a screening panel about a specific candidate for elective judicial office, the rating that is eventually issued is not, and does not appear to be, the judge’s rating. The Committee concludes that the judge’s response to inquiries from an Independent Judicial Election Qualification Commission or a Bar Association Screening Panel does not constitute a public endorsement of or opposition to the candidate, and does not otherwise constitute prohibited political activity under Section 100.5(A)(1).