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Opinion #30 - 05/20/1966 (4-66)

Topic: Conflict of Interest;  Political Activity of Judges

Digest: Improper for judge not to resign before becoming a candidate for non-judicial office

Canon: Judicial Canon 30

QUESTION

Should Canon 30 of the Canons of Judicial Ethics be amended to permit a part-time judicial officer to run for non-judicial office and retain his judicial office at the same time?

OPINION

On the premise that advancement in the public service may be denied to young men who may not retain minor judicial office and at the same time run for political non-judicial office, this inquiry has been directed to possible modification of Canon 30 of the Canons of Judicial Ethics.  The present text of the Canon is:

"30. Candidacy for Office

"A candidate for judicial position should not make or suffer others to make for him promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen he will administer his office with bias, partiality or improper discrimination.

"While holding a judicial position he should not become an active candidate either at a party primary or at a general election for any office other than a judicial office. If a judge should decide to become a candidate for any office not judicial, he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his own candidacy or the success of his party.

"If a judge becomes a candidate for any judicial office, he should refrain from all conduct which might tend to arouse reasonable suspicion that he is using the power or prestige of his judicial position to promote his candidacy or the success of his party.

"He should not permit others to do anything in behalf of his candidacy which would reasonably lead to such suspicion."

It is also urged that minor judicial offices are part-time, poorly paid, and so limited geographically and in jurisdiction, as to involve neither large numbers of the electorate nor issues of popular consequence.

In Matter of Furey, 17 AD 2d 983, Canon 30 has recently been construed adversely to one who sought to retain the office of Village Police Justice while engaging in a campaign to promote his candidacy for the non-judicial office of Assemblyman.

The Committee recommends no modification of the Canon.  This Committee believes that the Canon as presently drawn defines that conduct best calculated to advance the interests of justice and public confidence in its administration.

This Committee believes that the appearance of justice may often be as important as justice itself, and that the prohibition called in question is a salutary one, not to be abandoned.

The Committee believes that the canon dictating resignation from judicial office in order to run for non-judicial office is in the end but an acknowledgement of that course of conduct which would be adopted by the thoughtful lawyers under such circumstances, even if that canon were silent.

This Committee can formulate no better statement of its opinion than is to be found in the words of the canon itself, "If a judge should decide to become a candidate for any office not judicial, he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his candidacy or the success of his party."