October 24, 2013
Digest: A judge who is not in his/her window period may attend a victory party for a newly elected co-judge, even though the party is separate and distinct from the co-judge’s swearing-in ceremony, provided that the party is paid for solely with personal funds.
Rules: 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)-(2); 100.5(A)(1)(g); 100.5(A)(4)(a); 100.5(B); Opinions 12-169;08-40; 00-113 (Vol. XIX)Joint Opinion 09-240/09-241/10-06.
The inquiring judge, who is not in his/her window period, states that another seat in his/her court will be filled by election this November. Because the candidate is running unopposed; i.e., with no opponents on the ballot for the general election; the candidate’s spouse has organized a victory party to take place a few days after the election. The inquiring judge states that the victory party will be funded entirely by the candidate’s own personal funds, rather than by campaign funds. Significantly, there is no indication in the inquiry that the victory party is a fund-raiser. Under these circumstances, the judge asks if it is permissible to attend the party.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is generally prohibited from engaging in partisan political activity except during the “window period” when he/she is a candidate for judicial office (see 22 NYCRR 100.0[Q]; 100.5[A]-). For example, judges who are not within their window period are prohibited from “attending political gatherings” (22 NYCRR 100.5[A][g]).
In Joint Opinion 09-240/09-241/10-06, the Committee advised that a judge may attend the swearing-in ceremony and post-ceremony reception for a newly-elected public official and may administer the public official's oath of office, even if the event is sponsored by the official's campaign committee or paid for by unused campaign funds, as long as the event is not a fund-raiser. The Committee emphasized that, in the course of answering the inquiring judge’s questions “about attending an ordinary swearing-in ceremony that includes a traditional post-induction reception,” the Committee had “no reason to reconsider its prior advice that judges outside their window period may not attend ... a post-election victory party that is substantially separate and distinct from the swearing-in ceremony” (Joint Opinion 09-240/09-241/10-06).
The present inquiry, however, directly raises a question which was not addressed in Joint Opinion 09-240/09-241/10-06, because the post-election victory party at issue will be held in November 2013, more than a month before the inquiring judge’s newly elected co-judge will be sworn in. Therefore, the victory party is therefore a separate and distinct event from the swearing-in ceremony.
The Committee has previously advised that a judge who is not in his/her window period may not attend a post-election victory party celebrating a neighbor’s election as a town board member, “even if the event is not sponsored by a political organization” and even though the full cost of the party will be paid solely by the successful candidate and his/her friends through their own personal funds (Opinion 00-113 [Vol. XIX]). The Committee concluded, in that instance, that the victory party was inherently political in nature, regardless of its organization or financing, and that “the judge’s attendance could give an impression of political partisanship” (id.).
On the facts presented, however, the Committee believes Opinion 00-113 (Vol. XIX) is inapplicable here. Even remote in time from administration of the oath of office, a victory party for a newly elected co-judge, paid for solely with personal funds, is surely an event that “calls for collegiality” among judges of the same court, and “tends to promote civil relations and discourse” between judicial colleagues (cf. Joint Opinion 09-240/09-241/10-06 [permitting attendance at swearing-in ceremony and reception as a “civic event that calls for collegiality” among public office-holders and as an occasion that “tends to promote civil relations and discourse between” branches of government]). Under these circumstances, the inquiring judge’s attendance at the victory party for a newly elected co-judge, in the “obvious role of” a judicial colleague, is highly unlikely to give an impression of political partisanship (cf. Opinion 12-169 [permitting judge to attend a victory reception for his/her child “in the obvious role of [a] parent”]).1 Therefore, the judge may attend.
At the victory party, the inquiring judge must avoid any impermissible political activity, and must not create an appearance that he/she is or was involved in his/her new judicial colleague’s campaign (see generally 22 NYCRR 100.5[A]; Opinion 12-169).
1 The Committee need not, and does not, reach the question of whether to reconsider Opinion 00-113 (Vol. XIX) with respect to a victory party for a candidate for non-judicial office.
There is precedent in the Rules Governing Judicial Conduct and this Committee’s Opinions for distinguishing between candidates for judicial office and those for non-judicial office. For example, the Committee has advised that judicial candidates (both judges and non-judges) are subject to “exacting standards” in conducting their campaigns for elective judicial office, which are inapplicable to candidates seeking non-judicial office (Opinion 08-40; see also generally 22 NYCRR 100.5[A]). In addition, judicial candidates – unlike those seeking non-judicial office – must maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity, and independence of the judiciary (see 22 NYCRR 100.5[A][a]) and therefore a judge must resign from judicial office on becoming a candidate for elective non-judicial office (see 22 NYCRR 100.5[B]), but need not resign to run for another judicial office.