June 13, 1997
Digest:
(1) A judge may discuss with political party members and governmental officials
the possibility of becoming a candidate for the nonjudicial office of Lieutenant
Governor, but must resign upon becoming a candidate for such office. (2)
A judge who is being considered as a possible candidate for the office
of Lieutenant Governor is not required to recuse himself or herself in
cases in which the Governor is merely a nominal, formally named party,
not directly involved in the action, but should recuse in matters in which
the Governor is directly or personally involved.
Rules:
22 NYCRR 100.0(A); 100.3(E)(1);
100.5; 100.5(B);
Opinions 93-55 (Vol. XI);
91-44 (Vol. VII).
Opinion:
The inquiring judge asks the following questions:
As to the first question, the Committee is of the opinion that there is no ethical barrier preventing the judge from engaging in such discussions. Preliminary discussions with political authorities about a possible candidacy for judicial or nonjudicial office are not proscribed political activities under section 100.5 of the Rules Governing Judicial Conduct. See Opinions 93-55 (Vol. XI); 91-44 (Vol. VII). Nor do such discussions constitute a candidacy for public office. Section 100.5(B) of the Rules requires that "A judge shall resign from judicial office upon becoming a candidate for elective nonjudicial office either in a primary or in a general election..."1) May a sitting Supreme Court Justice discuss with political party members and governmental officials the possibility of becoming a candidate for a nonjudicial office?
2) After the Governor has stated publicly that he is considering a Supreme Court Justice as a possible candidate for election as his Lieutenant Governor, should that Supreme Court Justice recuse [himself/herself] from matters in which the Governor is a party?
Section 100.0(A) of the Rules Governing Judicial Conduct defines "candidate":
It does not appear that the inquirer has become a candidate for the office of Lieutenant Governor within the meaning of section 100.0(A). Should that occur, resignation from judicial office would be required, whereupon the limitations upon judicial political activity would no longer apply.(A) A candidate is a person seeking selection for or retention in public office by election. A person becomes a candidate for public office as soon as he or she make a public announcement of candidacy, or authorizes solicitation or acceptance of funds.
As to the question of recusal, section 100.3(E)(1) of the Rules states that "A judge shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned". The Committee takes note of the fact that the Governor is often named as a party in actions involving the State. The designation is frequently a formality, and does not necessarily signify any direct or personal involvement of the Governor. In such situations, where the Governor is a nominal, formally named party only, it does not appear to the Committee that recusal is mandated. Where, however, there is a direct or personal involvement by the Governor in the proceeding before the judge, the impartiality of the judge, who has been publicly mentioned by the Governor as a possible running mate, might reasonably be questioned. Under such a circumstance, recusal is required.