Digest:  (1) A non-judge candidate for elective judicial office may not retain the position of ward committee person of a political party. (2) A candidate for elective judicial office is not prohibited from personally seeking the endorsement of various organizations or of other political parties.
 

Rule:  22 NYCRR 100.5(A)(1)(a); 100.5(A)(1)(c);
100.5(A)(2)(i); 100.5(A)(3); 100.5(A)(5);
           Opinion 93-99 (Vol. XI).
 
 

Opinion:

            A non-judge candidate for election to the Supreme Court asks a number of questions concerning the permissibility of certain political activities during the campaign. First, the inquirer asks whether he/she may retain the position of ward committee person. As explained, a ward committee person is first recommended to the ward chair, and then must seek selection by petition circulated among registered voters in his/her election district. It is the ward committee person who votes on the nomination of candidates to be chosen to run for elective office.

            The inquirer correctly notes that section 100.5(A)(3) of the Rules Governing Judicial Conduct permits a non-judge candidate for elective judicial office to remain as a member of a political organization during the electoral campaign. However, the inquirer is also aware of section 100.5(A)(1)(a) of the Rules, which prohibits both judge and candidates for judicial office from acting as a leader or holding office in a political organization. Clearly, in this instance, it is section 100.5(A)(1)(a) that governs. The position in question is, in our view, an office in a political organization. That is, a ward committee person is not merely a "member" of a political organization. The method of selection and the role played in the organization by committee persons lead to the conclusion that the position is that of an officer. Moreover, the role of a ward committee person would require the candidate to engage in prohibited partisan political activity in violation of section 100.5(A)(1)(c) of the Rules. Accordingly, the inquirer may not serve in that position, and continuing to do so while a candidate would be unethical behavior.

            The candidate's second question involves seeking endorsements from such entities as the Police Benevolent Association and other political parties. The question posed is whether the candidate may him/herself solicit such endorsements.

            Section 100.5(A)(5) of the Rules Governing Judicial Conduct provides, in part, that "A judge or candidate for public election to judicial office shall not personally solicit or accept campaign contributions, but may establish committees of responsible persons to conduct campaigns for the candidate . . . . Such committees may solicit and accept reasonable campaign contributions . . . and obtain public statements of support for his or her candidacy."

            It is clear to the Committee that while there is an absolute bar to a personal solicitation of contributions by a candidate, there is no such bar to a candidate personally seeking endorsements. But, of concern to the inquirer is New York State Bar Association Formal Opinion 289 (April 27, 1973), which states that "the candidate should not himself solicit endorsements . . . ." That opinion was presumably based on former Canon 7(b)(2) of the Code of Judicial Conduct, which did state that a candidate should not "solicit publicly stated support." However, that Canon no longer exists. Effective April 13, 1996, the New York State Bar Association adopted a new Code of Judicial Conduct, which, as stated in its Preface, "parallels the provisions contained in the Rules of the Chief Administrator of the Courts, 22 NYCRR part 100." Thus, there is no Rule or Code provision which precludes a personal seeking of endorsements. Moreover, even in regard to former Canon 7(b)(2), this Committee took the position that the Canon provision should not be read literally and should not be "so strictly construed as to prevent a candidate from seeking the support of any particular organization." Opinion 93-99 (Vol. XI). In addition, section 100.5(A)(2)(1) of the Rules specifically permits a candidate to "attend and speak to gatherings on his or her own behalf, provided that the candidate does not personally solicit contributions."

            In sum, the Committee is of the opinion that a candidate may personally seek the support or endorsement of other political parties and other organizations, provided, of course, that the pursuit of such support is consistent with those provisions of the Rules relating to campaign conduct.

            Finally, the inquirer who, as stated, is running for a seat on the Supreme Court, raises a question concerning an individual's candidacy for a city court seat. The Committee will not provide an opinion in response to such an inquiry since it does not seek advice concerning the inquirer but rather is intended to elicit an opinion concerning the conduct of someone else. That is not the function of the Committee and, accordingly, we decline to respond to the question posed.