Opinion 07-89

October 18, 2007

Digest:         A Town Justice who is running for election to judicial office may include a photograph in his/her campaign literature that previously was published in the local paper and that depicts the County Court judge administering the Town Justice’s oath of office.

Rules:          22 NYCRR 100.5(A)(1)(d); 100.5(A)(1)(e); 100.5(A)(2)(iii); Opinions 05-101; 03-64; 97-32 (Vol. XV).

Opinion:

         A Town Justice who initially was appointed to office and now is running for election asks if he/she may include in his/her campaign literature a photograph that previously was published in the local newspaper and depicts the County Court judge administering the Town Justice’s oath of office. The photograph was taken in the Town Hall.

         Pursuant to the Rules Governing Judicial Conduct, a judge who is a candidate for judicial office may distribute pamphlets and other promotional campaign literature supporting his or her candidacy. 22 NYCRR 100.5(A)(2)(ii). In addition, the Committee has advised that a judge may be photographed in his/her judicial robes for use in campaign materials. Opinion 05-101.

         With respect to the County Court judge who also is depicted in the photograph, the Rules Governing Judicial Conduct preclude a sitting judge from participating in any campaign for public elective office other than his/her own campaign for elective judicial office; from publicly endorsing another candidate for public elective office; and, from allowing his/her name to be used in connection with any political activity. 22 NYCRR 100.5(A)(1)(d),(e); Opinion 97-32 (Vol. XV).

         Nevertheless, because the photograph in question was taken at a public swearing-in ceremony and was already published as a news item in the local newspaper, the Town Justice who is a candidate for judicial office may use the photograph, provided such use does not in any way imply that the sitting County Court judge endorses the Town Justice’s candidacy. 22 NYCRR 100.5(A)(1)(e). This result is consistent with our prior opinions advising that a judge should not allow a judicial candidate to use the judge’s photograph in a way that implies another judge’s endorsement of the candidate. Opinions 05-101; 03-64.