Opinion 03-42

June 12, 2003

Please Note: Although this opinion uses the term “nominating petition,” the same principles also apply to designating petitions and opportunity to ballot petitions.

Digest:         (1) A town justice may (a) witness signatures on his or her own nominating petition and (b) on a nominating petition for a slate of candidates from the judge’s own political party or another political party, provided that the petition includes the judge’s name as a nominee of that party. (2) A part-time judge may be a Notary Public and as such, may authenticate nominating petitions in his or her capacity as a Notary Public.

Rule:            22 NYCRR 100.5(A)(1)(c) ; Opinions 89-89 (Vol. IV); 91-94 (Vol. VIII); 91-96 (Vol. VIII); 94-78 (Vol. XII); 97-75 (Vol. XV); 98-99 (Vol. XVII); 02-64; Russell v. Board of Elections, 45 NY2d 800, (1978).

Opinion:

         A town justice asks whether it is ethically permissible for a town justice to (1) witness signatures on the justice’s own nominating petition; and (2) on a nominating petition for the justice and a slate of candidates for other offices from the justice’s own political party or another political party, as a notary or as a justice with limited powers to administer oaths or affirmations.

         Under the Rules Governing Judicial Conduct a judge who is a candidate for judicial office may participate in his or her own campaign. 22 NYCRR 100.5(A)(1)(c). Such participation includes the circulating of the judge’s own nominating petition. Opinion 89-89 (Vol. IV). A judge also may circulate nominating petitions for a slate of candidates from the judge’s own political party or another political party, so long as the judge’s name also is included on the petition as a nominee. Opinions 91-94 (Vol. VIII); 91-96 (Vol. VIII); 97-75 (Vol. XV); 98-99 (Vol. XVII); 02-64. In addition, this Committee has concluded that it is ethical for a town or village justice to hold the office of a Notary Public (Opinion 94-78 [Vol. XII]), and as such, may authenticate a nominating petition of any political party as a Notary Public. Opinion 98-99 [Vol. XVII].

         The extent of a town or village justice’s limited powers to administer oaths or affirmations is a legal question that was addressed by the Court of Appeals in Russell v. Board of Elections, 45 NY2d 800, (1978). The Court held that a justice’s limited powers do not authorize the justice to authenticate a nominating petition, because the Election Law requires that a nominating petition be authenticated by a Notary Public. Accordingly, only if the inquirer is a Notary Public may he or she authenticate such petitions.