Opinion 09-162

October 22, 2009

Please note: The independent judicial qualifications commissions ceased operations in 2018, and Part 150 was formally repealed in 2023. This opinion is limited to its facts, as the Committee no longer supports the view that it is unethical to say "highest" or "best" when there are only two positive ratings.

Digest:         If an independent judicial qualifications commission issues only one of two ratings - “qualified” or “not qualified” - a judicial candidate may not state that he/she has received the “highest” or “best” rating from the commission. A judicial candidate may comment about his/her opponent’s rating by an independent judicial qualifications commission as long as his/her comments are accurate and not misleading.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(2); 100.5(A)(2) (i) - (iv); 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); Part 150; 150.5(e), (f); Part 150, Appendix A §3(B),(C), §6(A), (B), (B)(2), (C), and §7; Joint Opinion 07-150/07-151; Opinion 07-91.

Opinion:

         A judge who is a candidate for judicial office has received a “qualified” rating from an independent judicial elections qualifications commission (hereinafter “qualifications commission;” (see 22 NYCRR Part 150). According to the inquirer, the qualifications commission issues only one of two ratings, “qualified” or “not qualified”¹ and asks whether he/she may refer to his/her rating as the “highest” or “best” rating available from the qualifications commission.

         The inquirer also advises that his/her opponent’s name is not included on the list of candidates that the qualifications commission rated “qualified,” and asks what, if anything, he/she may say about this fact.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge is prohibited from engaging, either directly or indirectly, in political activities (see 22 NYCRR 100.5[A][1]) except that a judge who is a candidate for public election to judicial office may participate in his/her own campaign for judicial office (see 22 NYCRR 100.5[A][2]).

         During his/her Window Period (see 22 NYCRR 100.0[Q]), a judge who is a candidate for public election to judicial office may (i) attend and speak to gatherings on his or her own behalf; (ii) appear in newspaper, television and other media advertisements supporting his or her candidacy, and distribute pamphlets and other promotional campaign literature supporting his or her candidacy; (iii) appear at gatherings, and in newspaper, television and other media advertisements with the candidates who make up the slate of which the candidate is a part; and (iv) permit the candidate's name to be listed on election materials along with the names of other candidates for elective public office (see 22 NYCRR 100.0[Q]; 100.5[A][2][i]-[iv]). In conducting his/her campaign, a judicial candidate must maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][4][a]). In addition, a candidate shall not knowingly make any false statement 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]).

         The Committee also notes that each qualification commission publishes a Statement of Ethical Guidelines (see 22 NYCRR Part 150 Appendix A §6[A]) “for use of Commission's Rating,” which is available online at http://www.ny-ijeqc.org/Part150-EthicalGuidelines.pdf.

         The Committee previously has advised that judicial candidates may inform the public truthfully, and without distortion, about matters of public record regarding themselves, including that a qualification commission rated them “qualified” for the judicial positions they seek (see Joint Opinion 07-150/07-151). However, because the qualification commission only awards one of two ratings, i.e., “qualified” or “not qualified” (see 22 NYCRR 150.5[e]; Part 150 Appendix A §6[B]), it is the Committee’s view that it would be misleading for the inquiring judge to state, without explaining that there are only two possible ratings, that he/she has received the “best” or “highest” rating from a qualification commission.²

         As to any comments the inquiring judge may make about his/her opponent, a judicial candidate shall not “knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent” (22 NYCRR 100.5[A][4][d][iii]; cf. Joint Opinion 07-150/07-151). Therefore, before commenting on the fact that an opponent's name is not included in a qualification commission's “qualified” list, a judicial candidate must take several steps to ensure that his/her comments are accurate.

         First, a candidate for judicial office is not required to participate in an election commission’s qualification procedures (see 22 NYCRR Part 150 Appendix A

§6[B][2] [“There shall be no communication to the public regarding those candidates who did not participate in the commission's evaluation process”]; Opinion 07-91 [candidate who declines to engage in the evaluation process pursuant to Part 150 is not thereby in violation of the Rules Governing Judicial Conduct]). Therefore, where an opponent’s name is not included either on the list of candidates deemed “qualified” or the list of candidates deemed “unqualified” (see 22 NYCRR 150.5[e]; Part 150 Appendix A §3[B] and [C]), a candidate for judicial office must avoid any suggestion that his/her opponent is or has been rated unqualified (see 22 NYCRR 100.5[A][4][d][iii]).

         Second, any candidate found qualified for election to judicial office is deemed qualified for that judicial office for three years in the absence of any new information that may have a negative effect on the candidate’s qualifications or background (see 22 NYCRR Part 150 Appendix A §3[B]). And, any candidate not found qualified for election to judicial office shall be deemed not to be qualified for that judicial office for one year from the date the candidate submitted his/her application to the qualification commission (see 22 NYCRR Part 150 Appendix A §3[C]). Therefore, where a candidate for judicial office is not currently listed as “qualified,” his/her opponent must determine whether the candidate received a “qualified” rating during a prior year that is still effective before commenting on the opponent’s rating status. If an opponent received a “qualified” rating for the same position during a prior year that is still effective for the current year, it would be misleading to state that the opponent does not appear on the commission's list of qualified candidates.

         Third, to the extent that a qualification commission has discretion to accept late applications or to modify a “not qualified” rating (see e.g. 22 NYCRR Part 150 Appendix A §7 [setting forth procedure for requests for reconsideration]), the candidate should make sure that any reference to the opponent's rating status is accompanied by an indication of the date the candidate searched the qualification commission’s records.

         Therefore, the judge in the present inquiry must consider these rating procedures before making any comment about his/her opponent’s qualification commission rating.

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