Opinion: 97-45

May 8, 1997

Digest:  A prospective candidate for an anticipated vacancy in a judicial office may not allow the solicitation of funds or engage in other political campaign activity unless and until it is known that there will be a vacancy in the office sought.

Rules:  22 NYCRR 100.0(A); 100.5(A)(5).


            A Town Justice who anticipates receiving an interim appointment as a County Court Judge, when and if the current County Court Judge's appointment to the Supreme Court becomes effective, asks when the judge's campaign finance committee may properly hold a fund-raising event in support of what the inquirer expects to be his/her campaign for election to fill out the term of the incumbent County Court Judge.

            Under section 100.5 of the Rules Governing Judicial Conduct, a candidate for election to judicial office is entitled to engage in certain fund-raising and political activities that would otherwise be prohibited. A person becomes a candidate for judicial office by public announcement or by authorization of solicitation or the acceptance of campaign contributions. 22 NYCRR 100.0(A).

            But such candidacy can come into existence only if there is to be an election for that office. In the instant matter, there is, at present, no vacancy in the office of County Court Judge, nor is it known that, in fact, a vacancy will occur. Accordingly, at present, it cannot be said that there will be an election, since it is not yet known that a vacancy will exist which will require an election. Since a candidate for judicial office is a person "seeking selection [for judicial office] by election," (22 NYCRR 100.0[A]), and it is not presently known that there is to be an election, the inquirer cannot yet be deemed a candidate for the elective position of County Court Judge. It therefore follows that if the inquirer is not a cognizable candidate for election to the position of County Court Judge under section 100.0(A) of the Rules, the inquirer may not presently engage in fund-raising or other political activity that would otherwise be permissible in the course of a campaign for election to judicial office.