Opinion: 99-138

September 14, 1999

Digest: A judge who is no longer a candidate for judicial office, and who has repeatedly demanded that another candidate stop distributing a photograph of the slate of candidates of which the judge had been a part, is not required to take any further action.

Rule:  22 NYCRR 100.5(A)(2).


            In November 1997 the inquiring town judge was elected to fill the unexpired term of a town judge who had resigned. That judge's term was to end on December 31, 1999. Seeking re-election in 1999, the inquirer received political party endorsements and posed for a group picture with other party candidates for various town offices, including town board. However, a subsequent order of the Supreme Court barred the holding of a primary or general election for town judge on the ground that under Article VI, §17 of the New York Constitution an election for town judge is for a term of four years. The judge's term therefore ends not on December 31, 1999, but will continue to December 31, 2001, and there can be no election for town judge until November 2001. In other words, the judge is no longer a candidate for election to judicial office and thus can no longer engage in what would otherwise be authorized political activities under section 100.5(A)(2) of the Rules Governing Judicial Conduct.

            Unfortunately, as stated by the judge, "(t)he problem is that one of my former running-mates, a candidate for Town Board, did, in fact, use the group picture on his palm cards, and to the best of my knowledge, is presently distributing those palm cards." Twice the inquirer wrote to the candidate "demanding that he cease and desist distributing any literature with my picture or name on it, and explaining why." To date there has been no response. The judge asks if there is "anything else I might do in this situation?"

            The Committee does not believe that the Rules Governing Judicial Conduct require the judge to take any further action. Acting promptly and with full knowledge of the significance of the court ruling which brought to a halt the judge's legitimate political activity, the judge sought to stop what would otherwise have been proper, i.e. the distribution of photograph of a slate of candidates which included the judge. The lack of success in that endeavor rests not with the judge but with the candidate who chose to ignore the judge's demands. Nothing more is required of the judge.