Opinion: 97-18

March 13, 1997

Digest:  A judge, who had been defeated for re- election and was then appointed to fill a one-year unexpired term in the same court, and is now a candidate for election to the same judicial office, may not use campaign material that contains the word "re-elect."

Rule:  22 NYCRR 100.5(A)(4)(d)(iii).


            The inquiring judge, who had sought re-election, was defeated in the November general election. The judge was then appointed to fill a one-year unexpired term for the same judicial position in the same court, commencing January 1. Accordingly, the judge's service in that position has been continuous. The judge seeks an opinion as to whether the word "re-elect", which appears in the campaign material from the most recent election, may be used in the judge's present electoral campaign for that position.

            Section 100.5(A)(4)(d)(iii) of the Rules Governing Judicial Conduct states that a candidate for judicial office shall not "knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent."

            In view of the fact that the inquiring judge had been defeated in his campaign for re-election and is now serving in an appointed capacity, it would be a violation of the Rule to inform the electorate that they were casting a ballot to "re-elect" the inquiring judge, since the judge is not now serving by virtue of a mandate of the electorate. As a matter of fact, the contrary is true, for even though the judge has held the same judicial title on a continuing basis, the judge's current entitlement to that status was obtained without benefit of an election. It is therefore the opinion of the Committee that the judge should not use the word "re-elect" in his present bid for election to that judicial position.