Opinion 21-50

March 11, 2021

Digest:     A judge who authorizes or knowingly permits their name to appear on a publicly circulated nominating petition as a candidate for nonjudicial office is a “candidate” under the Rules Governing Judicial Conduct and thus must resign from judicial office. If the judge does not wish their name to appear on the nominating petitions, the judge must object in writing to the appropriate political party leaders.

Rules:       22 NYCRR 100.0(A); 100.2; 100.2(A); 100.5(A)(1); 100.5(B); Opinions 15-176; 02-34; 97-65; 93-55.

Opinion:

         The inquiring judge is considering running for elective nonjudicial office, but has not publicly announced this fact or authorized formation of a campaign committee or solicitation of funds, and does not plan to carry any nominating petitions for the position. However, the judge would like to permit a political party to circulate nominating petitions naming the judge for the nonjudicial office, without the judge’s involvement. The judge explains that nominating petitions may be circulated by political parties during a designated period and must be filed with the local board of elections by a set date. Once nominating petitions have been filed, the board of elections notifies those whose names appear on the petitions and asks them to formally accept or decline the nomination. The judge asks if the mere appearance of the judge’s name on nominating petitions for nonjudicial office, without more, would make them a “candidate” under the Rules Governing Judicial Conduct and thus require them to resign from judicial office – or whether the judge should not be deemed a “candidate” unless and until the judge formally accepts the nomination after the petitions are filed with the board of elections.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A sitting judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]) and must “resign from judicial office upon becoming a candidate for nonjudicial office either in a primary or in a general election” (22 NYCRR 100.5[B]). Under the Rules, a “candidate” is “a person seeking selection for or retention in public office by election,” whether or not they have secured a political party’s nomination (22 NYCRR 100.0[A]). A person becomes a candidate for public office “as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (id.).

         We have advised that a judge may privately discuss “the possibility of becoming a candidate” for nonjudicial office with “political party members and governmental officials,” as such limited, non-public discussions constitute “testing the waters” for a possible future run rather than an actual candidacy for the office in question (Opinions 97-65; 15-176). In addition, a judge may make a “special appearance” before the executive committee of a county political party “for the limited purpose of being interviewed as a possible candidate for the position of district attorney,” even though the judge would need to resign from judicial office on becoming a candidate for the office (see Opinion 93-55).

         Conversely, contacting community residents “to learn if they would support the judge’s candidacy” for an office “does not involve a ‘testing of the waters’ about the possibility of receiving backing from a political party, but rather determining what the likelihood is of being supported by the voters themselves in a primary or general election” (Opinion 02-34). We concluded this is “clearly political activity” (id.), and therefore not permissible except during the judge’s window period for election or re-election to a known judicial vacancy.

         Applying these principles, we believe that authorizing or knowingly permitting the judge’s name to be circulated to the public on a nominating petition is likewise a clear public manifestation of the judge’s interest in being elected to the position. Indeed, this conduct is even more overtly political than speaking to community residents to see if they would support the judge’s candidacy, as it involves soliciting registered voters’ signatures to place the judge’s name on the ballot. We therefore conclude that the appearance of the judge’s name on a publicly circulated nominating petition for nonjudicial office constitutes a public announcement of candidacy, thus triggering the resign-to-run rule (see 22 NYCRR 100.0[A]; 100.5[B]).

         Because the overt political conduct of passing nominating petitions with the judge’s name already makes the judge a “candidate” under the rules, it is irrelevant for our purposes that the board of elections would later give the judge a chance to formally accept or decline the nomination after the petitions are filed.

         Where, as here, a judge learns or is aware that a political party seeks to pass petitions with the judge’s name on it, if the judge does not wish their name to appear on the nominating petitions, the judge must object in writing to the appropriate political party leaders.¹

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¹ We are not speaking here of a malicious individual who might circulate unauthorized nominating petitions in bad faith. Should this scenario occur, the judge may write in for guidance; but we see no reason why a judge should resign in response to unauthorized tactics of malicious third parties unassociated with the judge.