Opinion 12-97
June 14, 2012
Digest: A judge or non-judge candidate for election to town or village justice may fully participate as a candidate in a local bar association’s screening process, subject to generally applicable limitations on judicial campaign speech. Thereafter, the judge may preside in a matter in which a member of the panel appears as an attorney, absent any disqualifying factor and assuming the judge can be impartial.
Rules: Judiciary Law §14; 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.3(B)(8); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(2)(i)-(iv); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); 100.5(A)(7); Opinions 11-124; 11-64; 09-162; Joint Opinion 07-150/07-151; Opinions 07-130; 97-99 (Vol. XVI); 94-86 (Vol. XII); 93-106 (Vol. XI); 88-100 (Vol. II).
Opinion:
The inquiring part-time judge presides in a town or village justice court, and is also an officer or director of a magistrates association. In anticipation of his/her own upcoming re-election campaign and also on behalf of other town and village justice members of the magistrates association, the inquiring judge asks the following questions about participating in a county bar association’s evaluation process:
1. [M]ay a part-time Town/Village Justice or candidate for same agree to have his/her qualifications evaluated by a local bar association and have that evaluation publicized by the local bar association?
2. May a candidate for election/reelection for town/village justice participate, as a candidate, in [a local bar] association’s judicial evaluation process, even though that candidate is also a member of that association?
3. May a part-time town justice who is a candidate for reelection complete and submit some or all of the following items to a local bar association as part of that association’s judicial candidate evaluation process:
• candidate’s questionnaire
• candidate’s resume
• candidate’s writing samples
• prior decisions and rulings
Each of these is noted [by the bar association] as part of the evaluation process.
4. Does [the Committee’s] previous 94-86 apply to part-time justices, such that a part-time town justice would not have to recuse herself/himself from a case pending in their court in which a member of the local bar association’s evaluation committee is also serving as counsel in that pending case?
5. May a part-time town/village justice recite a local bar association evaluation committee rating (highly qualified or qualified) of their qualifications in campaign materials? In short, does opinion 09-162 also apply to evaluations completed by local bar associations of candidates to part-time town/village justice positions?
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]). To that end, a judge may not directly or indirectly engage in any political activity except as expressly authorized (see 22 NYCRR 100.5[A][1]), and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).
A candidate for elective judicial office, including a non-judge or a sitting full- or part- time judge, may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.0[Q]; 100.5[A][1][c]; 100.5[A][2]).1 In conducting his/her campaign, a judicial candidate must maintain the dignity, impartiality, integrity and independence of judicial office (see 22 NYCRR 100.5[A][4][a]) and, therefore, must not make pledges, promises or commitments inconsistent with the impartial performance of the adjudicative duties of the office (see 22 NYCRR 100.5[A][4][d][i]-[ii]). Additionally, a candidate must not knowingly make any false statements or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent (see 22 NYCRR 100.5[A][4][d][iii]). A judicial candidate who is a sitting judge or quasi-judicial official must also avoid public comment on pending or impending matters in the United States or its territories (see 22 NYCRR 100.3[B][8]).
In the Committee’s view, all of the questions posed by the inquiring judge must be answered in the affirmative. The Committee has previously recognized that “persons seeking judicial office generally must, as a practical matter, submit their qualifications for the review of one or more screening panels” (Opinion 11-64) and, more specifically, that “appearing before a bar association’s judicial screening committee is not a prohibited activity” under the Rules (Opinion 94-86 [Vol. XII]). Whether the elective judicial office sought is full-time or part-time, and whether the candidate is currently a part-time judge, full-time judge, or a non-judge, simply does not affect the practical realities, or the ethical considerations, set forth in those Opinions.2
Accordingly, the Committee concludes that a judge or non-judge candidate for election to the office of town or village justice in his/her window period may apply to have his/her qualifications reviewed by a local bar association’s screening panel and, therefore, may truthfully and without distortion, complete a written questionnaire, submit a resume, writing samples, and copies of prior decisions and rulings, along with any other pertinent materials (see Opinions 11-64; 97-99 [Vol. XVI]; 94-86 [Vol. XII]; 93-106 [Vol. XI]). In answering the questionnaire, the candidate should also avoid making any improper pledge or promise (see 22 NYCRR 100.5[A][4][d][i]-[ii]; Opinion 93-106 [Vol. XI]).
A judicial candidate’s participation in a bar association’s screening panel is not rendered ethically impermissible merely because the candidate is a member of the bar association or because members of the screening panel may or do appear before the candidate (see e.g. Opinion 11-64). The judicial candidate may publicize any resulting rating (see Opinion 09-162; Joint Opinion 07-150/07-151; Opinions 07-130; 88-100 [Vol. II]) and need not prohibit the bar association from publicizing the candidate’s participation in the process (cf. 22 NYCRR 100.5[A][2][iv] [judicial candidate may permit his/her name to be listed on election materials]).
The Committee has further advised that “a judge’s impartiality cannot reasonably be questioned simply for participating in th[e] routine process” of appearing before a screening panel (Opinion 11-64). Thus, a judge who recently appeared before a bar association’s judicial screening panel may preside in a matter in which a member of the panel appears as an attorney, in the absence of any disqualifying factor and assuming the judge can be fair and impartial (see Opinions 11-64; 94-86 [Vol. XII]). The judge is not required to disclose his/her prior appearance before the screening panel (see id.). However, the judge may, if he/she wishes, voluntarily choose to disclose this fact without incurring any obligation to disqualify him/herself (see Opinion 11-124 [recusal not required for purely prophylactic disclosures]).
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1For example, a judicial candidate may (i) attend and speak to gatherings on his/her own behalf; (ii) appear in media advertisements and distribute promotional campaign literature supporting his or her candidacy; (iii) appear at gatherings and in media advertisements with other candidates on his/her slate; and (iv) permit his/her name to be listed on election materials along with the names of other candidates for elective public office (see 22 NYCRR 100.5[A][2][i]-[iv]).
2If anything, those seeking election to a part-time town or village justice position may have a greater need to appear before bar association screening panels, since they are not eligible for review by the Independent Judicial Election Qualification Commissions (see 22 NYCRR 100.5[A][7]).