Rule 4.5 of the American Bar Association 2007 Model Code of Judicial Conduct provides that, “[u]pon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.” Canon 5C(2) of the 1990 model code and Canon 7A(3) of the 1972 model code were similar, and California and Montana are the only states not to adopt a resign-to-run requirement.
The rationale for the rule was described in a federal case upholding the Louisiana canon against a First Amendment challenge by a judge who wanted to run for mayor without first resigning. Morial v. Judiciary Commission, 565 F.2d 295 (5th Circuit 1977). The U.S. Court of Appeals for the 5th Circuit acknowledged that “relegating one’s robes to the closet is a heavy price to pay for tossing one’s hat in the ring.” However, the Court concluded:
By requiring a judge to resign at the moment that he becomes a candidate, the state insures that the judge will not be in a position to abuse his office during the campaign by using it to promote his candidacy. The appearance of abuse which might enshroud even an upright judge’s decisions during the course of a hard-fought election campaign is also dissipated by requiring the judge to resign. He who does not hold the powers of the office cannot abuse them or even be thought to abuse them.
Moreover, the Court agreed that resignation was necessary to prevent post-campaign abuse or its appearance, which could not be prevented by a leave of absence during the campaign. Noting that a state is not required to rely on post-campaign measures such as recusal or disciplinary proceedings against judges who used their office improperly, the Court held that “a requirement that a judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state’s interest in preventing the actuality or appearance of judicial impropriety,” without offending the First Amendment’s guarantees of free expression and association or the 14th Amendment’s guarantee of equal protection of the laws. Accord Matter of Buckson, 610 A.2d 203 (Delaware 1992).
Similarly, the Maine Supreme Judicial Court concluded the rule “rationally seeks to separate a judge’s political, legislative, or executive branch ambitions from the judge’s judicial decision-making to further the objective of maintaining a judiciary that is independent and impartial both in fact and in the public’s perception.” In re Dunleavy, 838 A.2d 338 (Maine 2003). Rejecting the judge’s state and federal constitutional challenges, the Court found that a probate judge had violated the code of judicial conduct by running for the state senate without resigning his judicial position, although it imposed no discipline.
A comment was added to the model code in 2007 to explain the basis for the rule.
In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.
The code does not define when a judge becomes “a candidate for a nonjudicial elective office,” triggering the resignation requirement, but it does provide that for a judicial office a person becomes a candidate “as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.” The same definition has been applied in interpreting the resign-to-run rule.
Thus, a judge must resign whenever the judge announces to the public the intention to run for a non-judicial office, whether by issuing a press release, filing with the proper authority, “or any other method by which he lets his candidacy become generally known. To hold otherwise would permit the very appearance of impropriety to which the [resign-to-run rule] is directed.” Kentucky Formal Opinion JE-23 (1981).
The Delaware Court on the Judiciary found that a judge who had publicly announced in a press release that he intended to have his “name placed before the Republican Convention to be the gubernatorial nominee for Governor of Delaware” had violated the code. Matter of Buckson, 610 A.2d 203 (Delaware 1992). The Court censured and removed him from office.
In a press release, the judge had stated:
The party deserves a choice. This is not partisan politics and, therefore, not in violation of any rules pertaining to the judiciary. When I am the nominee, I will resign my present position and ask the Governor to promptly name a successor acceptable to the Senate.
Based upon the contacts by many people since my November announcement, I have statewide support. My plan is to attend functions of many of the Republican Party organizations to gain delegates to the convention by presenting my qualifications, . . . Based upon my experience in state government, I am eminently qualified to be Governor of Delaware . . . certainly more so than any person mentioned for the office to date.
So . . . on to the convention! Thanks.
He had also attended regional party caucuses and other meetings to gain support. Rejecting the judge’s “testing the waters” defense, the Court held that the record was clear that he had publicly announced his candidacy, his political activity went beyond that of a prospective candidate, and he had actively engaged in political activity to secure the nomination.
The Florida judicial ethics committee stated that when a person becomes a candidate may vary depending on the nature of the community. Florida Advisory Opinion 1994-20. In a large community, the committee advised, telling a few friends should not qualify the judge as a candidate for a non-judicial office, but in a small community, the situation may be perceived differently. The committee noted that the resignation requirement is not triggered simply by an intent to run for office.
Further, a judge does “not have to resign merely to learn whether he has a realistic chance of election.” Matter of Buckson, 610 A.2d 203 (Delaware 1992). Thus, without having to resign, a judge may make preliminary surveys of financial and voter support (Kentucky Formal Opinion JE-23 (1981); Louisiana Advisory Opinion 35 (1976)) and discuss the possibility of becoming a candidate with the head of a local political committee, political party members, governmental officials, and political authorities. New York Advisory Opinion 1991-44; New York Advisory Opinion 1997-65; New York Advisory Opinion 1993-55.
By its terms, the rule does not require a judge to resign before running for a different judicial office. See Florida Advisory Opinion 2011-9 (civil traffic infraction hearing officer may run for county judge); Kansas Advisory Opinion JE-117 (2004) (municipal judge may run for district magistrate); Oklahoma Advisory Opinion 1998-3 (sitting appointed judge may run in judicial election); Tennessee Advisory Opinion 2003-4 (general session judge may run for state court judge). But see In re Hodgdon, 19 A.3d 598 (Vermont 2011) (public reprimand of an assistant judge who failed to resign upon becoming a candidate for probate judge when the state’s code provides that, “A judge shall resign from judicial office upon becoming a candidate for any elective office, except that a judge of probate or an assistant judge may be a candidate for reelection or may serve as town meeting moderator, provided that the judge complies with the provisions of Section 5C”).
The model code allows a judge to be a candidate for appointment to a non-judicial office without resigning provided “the judge complies with the other provisions of this Code.” A comment notes, “when a judge is seeking appointive nonjudicial office,” the dangers the resignation requirement was designed to prevent “are not sufficient to warrant imposing the ‘resign to run’ rule.” The reporters’ notes further explain:
In addition, because a sitting judge may become a “candidate” for an appointive non-judicial office . . . merely by being considered by an executive branch officer for appointment, the Commission decided it was unwarranted to require automatic resignation. This consideration is especially strong when the executive branch may be considering several nominees for the same position, and when the confirmation process, if any, is both lengthy and of uncertain outcome.
However, “[a]s a fail-safe,” the code reminds a judge who is a candidate for even an appointive non-judicial office “to abide by the other provisions of this Code (such as maintaining independence, integrity, and impartiality).”
Similarly, the Ohio judicial ethics committee advised that a judge was not required to resign from judicial office to become a candidate for appointment by a county central committee to the office of prosecuting attorney but that her activities would be limited by the code of judicial conduct. Ohio Advisory Opinion 1998-6. Thus, the judge could announce her intention to be a candidate to the public and to the appointing authority and seek support or endorsement “from individuals or organizations that are involved in the making of the recommendation for appointment to the office.” However, the judge could not participate in any fund-raising and must ensure that her efforts to win the appointment do not interfere with the diligent and impartial performance of her judicial duties. The committee advised that the judge should resign from judicial office before accepting the appointment if offered.
See also Nevada Advisory Opinion JE2011-15 (a judge must resign before becoming a candidate for appointment to the unexpired term of the elective office of district attorney); New York Advisory Opinion 2015-176 (a judge may reveal, discuss, and explore his interest in an interim appointment to non-judicial office with the public official who will make that decision if the position becomes vacant).
There are no other exceptions. Thus, conduct commissions and advisory committees have stated that a judge must resign before running for:
- Circuit clerk (Commission on Judicial Performance v. Ishee, 627 So. 2d 283 (Mississippi 1993));
- Sheriff (Florida Advisory Opinion 1996-5; South Carolina Advisory Opinion 7-1992; West Virginia Advisory Opinion (January 27, 2011));
- Legal offices such as county attorney (Kentucky Informal Opinion JE-18 (1981)); or district attorney (North Carolina Advisory Opinion 2017-1);
- Legislative offices such as town select board (In re Colby, 989 A.2d 553 (Vermont 2009)); legislator on the county board (New York Advisory Opinion 2005-14); house of delegates (West Virginia Advisory Opinion (February 23, 2012)); or county board of supervisors (Commission on Judicial Performance v. Ishee, 627 So. 2d 283 (Mississippi 1993));
- Mayor (Louisiana Advisory Opinion 35 (1976)) or town supervisor (New York Advisory Opinion 1989-126); and
- Offices such as sanitation district board member (Arizona Advisory Opinion 1982-1); fire district commissioner (New York Advisory Opinion 2010-207); or state university regent or trustee (Nevada Advisory Opinion JE1998-1).
See also South Carolina Advisory Opinion 8-2016 (a full-time magistrate cannot run for a political office).
Admonishing a part-time judge, the New York State Commission on Judicial Conduct found that he should not have run for the school board even if he was unopposed and even if the post was non-partisan. In the Matter of Vosburgh, Determination (New York State Commission on Judicial Conduct September 24, 1991). The Commission explained:
Although not openly aligned with major political parties, school board members in most jurisdictions of the state are elected, political officers. Service on a school board often requires a member to take positions on controversial issues of community interest other than those related to the law, the legal system or the administration of justice.
The judge had been elected to fill an unexpired term on a local school board in May 1987; in November 1987, he was elected as a part-time town court justice. When he stood for re-election to the school board in May 1990, he asked for an advisory opinion but ignored it when the judicial ethics committee stated that a part-time judge who was elected to the local school board before becoming a judge may not seek re-election to the board. New York Advisory Opinion 1990-79. The advisory committee explained:
Local school boards, both in urban and rural areas, are subjects of wide-spread community interest. One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy. School board members may be at the center of such controversies and the object of public criticism.
Although the judge states that the school board district is a small part of the jurisdiction of the court, local attention focused on the school board could spread to the rest of the judicial area and to surrounding towns as well. Thus, the judge could be highly visible in educational controversies, which could be inconsistent with judicial duties. That the judge is unopposed for re-election does not preclude controversy while serving as a board member.
See also Washington Advisory Opinion 1985-8 (a part-time judge may not become a candidate for an uncompensated, non-partisan school board position in a school district outside the municipality in which the judge sits).
The judge’s resignation must be effective immediately upon becoming a candidate for a non-judicial elective position. See New York Advisory Opinion 2009-126 (a judge who has announced his candidacy for an elective non-judicial office may not after resigning remain on the judicial payroll to receive compensation for accrued vacation time); West Virginia Advisory Opinion (February 23, 2012) (a mental hygiene commissioner must resign immediately upon becoming a candidate for the house of delegates and cannot be appointed for the limited purpose of serving as the substitute drug court judge during the election); West Virginia Advisory Opinion (January 27, 2011) (a magistrate must resign immediately on announcing his candidacy for sheriff and cannot remain in the position pending appointment of a new magistrate).
The resignation requirement cannot be circumvented by taking a leave of absence from a judicial office while running for a non-judicial office. See New York Advisory Opinion 1989-126 (town justice may not take a leave of absence to campaign for town supervisor); South Carolina Advisory Opinion 7-1992 (a magistrate cannot simply take a leave of absence, without pay, to become a candidate for sheriff). In California, there is no resign-to-run rule, and the state constitution allows a trial judge to “become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.” The California code of judicial ethics provides that a judge who is on leave while running for other public office pursuant to the constitution “shall comply with all provisions of this code, except . . . , insofar as the conduct relates to the campaign for public office for which the judge is on leave: 2B(2)—Lending the prestige of judicial office to advance the judge’s personal interest, 4C(1)—Appearing at public hearings, 5 — Engaging in political activity (including soliciting and accepting campaign contributions for the other public office).” The California constitution provides that “[a]cceptance of the public office is a resignation from the office of judge.”