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Opinion 206

An opinion is requested on the following issue:

Are the provisions of Canon 4 of the Code of Judicial Conduct applicable to a Judge who holds Senior status, but who does not hear cases or otherwise perform judicial duties?

The Application Section of the Code of Judicial Conduct provides:

Anyone … who is an officer of a judicial system performing judicial functions … is a judge for the purposes of this Code. All judges shall comply with this Code except as provided below.

No such exception is provided in the Application Section, and the only specific exception for Senior Judges is found in Rule 3.9 which permits such judges to act as arbitrators or mediators for compensation.

At the same time, Rule 4.6 provides that such Canon generally applies to all incumbent judges and judicial candidates.

Since an inactive Senior Judge is neither “performing judicial functions” nor an “incumbent judge or judicial candidate,” it can be argued that such judges are exempt from the requirements of Canon 4.

However, Rule 1.3 provides that:

Judges shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .

Thus, while an inactive Senior Judge may well not be subject to the requirements of Canon 4, all judges are subject to the requirements of Rule 1.3 and, hence, prohibited from using the judicial office in an attempt to advance the political interests of others.

Accordingly, if Senior Judges desire to engage in political activity, such judges shall first declare themselves ineligible to serve as judges in compliance with existing court rules and thereafter refrain from using either their titles or judicial positions to further the interests of any political candidate.

In sum, an inactive Senior Judge may appropriately engage in political activities, but only as a private citizen with absolutely no reference being made to his or her judicial position.

[Pertinent Code of Judicial Conduct provisions: Rule 1.3, Rule 3.9, Rule 4.6. Cross reference to other relevant opinions for review: #25, #111, #200.]

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