Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 03-2

Date Issued: May 16, 2003

Date Amended: July 18, 2003

Propriety of a Judge Recommending a Candidate for a Judgeship to a Legislative Committee

ISSUE

1. May a judge write a letter or place a telephone call on behalf of a candidate for judicial office to a candidate screening committee appointed by a legislator when the request is made by the candidate?

Answer: No.

2. Would the answer to question number 1 be different if the request were made by or on behalf of the legislator?

Answer: Yes.

FACTS

The Committee received three inquiries concerning the propriety of a judge's writing a letter or placing a telephone call to a legislative selection committee on behalf of a judicial candidate. Two of these ask if a judge may make these types of contacts at the candidate's request. The third inquiry asks if a judge may write a letter concerning a judicial candidate to a legislator or a selection committee appointed by a legislator if an official inquiry is made.

DISCUSSION

Canon 2 (B) provides that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Canons of Judicial Conduct, Canon 2 (B). The Commentary following Canon 2(B) states that:

Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. Id. at Canon 2 (B) Commentary (emphasis added).

While neither Canon 2 (B) nor the Commentary expressly prohibits a judge from writing a letter or placing a telephone call to a selection committee on behalf of a judicial candidate, it is the opinion of the Committee that the Commentary to Canon 2 (B) makes it clear that a judge may only make telephone calls and write letters on behalf of a judicial candidate if the judge is responding to official inquiries from legislative sources. Canon 2 (B) states that a judge may not use the judgeship to further the private interests of others. The Commentary to that Canon section narrows a judge's participation in the judicial selection process, explaining that a judge may "cooperat[e] with appointing authorities" and "respond ... to official inquiries." Id. at Canon 2 (B) Commentary.

A judicial ethics advisory opinion dated September 11, 2000, deals with an analogous situation. Virginia Advisory Opinion 00-8 (2000). That opinion dealt with the "Propriety of a Judge's Writing or Telephoning the Virginia State Bar Supporting a Petition for Reinstatement of an Attorney Whose License had been Surrendered or in Support of an Attorney Facing Disciplinary Action." Id. In that opinion, the Committee explained that "Canon 2B prohibits a judge from 'lend [ing] the prestige of judicial office to advance the private interests of the judge or others...' and further states, specifically, that 'A judge shall not testify as a character witness.' (Emphasis supplied)" Id. (quoting Canons of Judicial Conduct, Canon 2 (B)). The opinion further stated that:

The Committee is of the opinion that by voluntarily writing or telephoning officials of the Virginia State Bar in a reinstatement proceeding or disciplinary proceeding involving a private attorney, the judge is, in effect, testifying as a character witness. This action creates the potential of lending the prestige of his or her judicial office in support of the private interests of the attorney. Accordingly, the Committee concludes that both actions would be prohibited conduct under the Canons. Id. (emphasis added)

In applying this reasoning to the present inquiry, the Committee is of the opinion that voluntarily contacting a member or committee of the General Assembly on behalf of a judicial candidate without an official request from that legislator or committee is tantamount to testifying as a character witness and, thus, "lend[s] the prestige of judicial office to advance the private interests of the judge or others." Canons of Judicial Conduct, Canon 2 (B).1

For these reasons, the Committee believes that the proposed conduct of calling or writing a member or committee of the General Assembly on behalf of a judicial candidate at the request of the candidate is, therefore, improper. Calling or writing as a response to an official inquiry from a legislator or a committee of the General Assembly2, however, is proper. A judge also may respond to an inquiry from the Governor in the exercise of his responsibility to appoint a judge of a court of record. Similarly, a judge may respond to an inquiry of a circuit court judge who is considering the candidate for appointment to a district court.3

FOOTNOTE

1 The Committee notes that, whenever there is a district court vacancy that will be filled by the General Assembly, the circuit court judges in that jurisdiction are required to submit to the legislature "a panel of no more than three persons ... who are deemed qualified" to serve.

2 From time to time, legislators may appoint committees from the community to recommend candidates for judicial positions. While a legislator may forward any information he or she desires to such a committee, a judge should not respond directly to such a committee because it is not a committee of the General Assembly and has no official standing.

3 These appointments by the Governor or Circuit Court are made only when a vacancy occurs when the General Assembly is not in session.

REFERENCES

Canons of Judicial Conduct, Canon 2 (B) and Canon 2 (B) Commentary.

Virginia Advisory Opinion 00-8 (Sept. 11, 2000).

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999

This page last modified: July 22, 2003