Opinion 08-157

June 4, 2009

Digest:         A judge who is a candidate for Supreme Court and seeks a political party’s nomination may ask voters to vote in a primary election for the judicial convention delegate who will support his/her nomination, but must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy .

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(2); Opinion 97-75 (Vol. XV).

Opinion:

         A judge who is a candidate for Supreme Court advises that he/she seeks the nomination of a political party that will hold a primary in September to select a judicial delegate. The judge advises that one delegate candidates supports the judge while another does not. The judge asks whether he/she may endorse or otherwise ask registered party members to vote for the delegate who supports the judge’s candidacy for Supreme Court. The judge further advises that, as a practical matter, he/she cannot secure the party’s nomination at the judicial nominating convention unless a judicial delegate who supports him/her is elected in the primary.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A candidate for judicial office may personally participate in his/her own campaign for judicial office during his/her window period, and may ask people to vote for him/her (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). However, a candidate for judicial office is prohibited from "publicly endorsing or publicly opposing (other than by running against) another candidate for public office" (22 NYCRR 100.5[A][1][e]; see generally id. at 100.5[A][1][c], [d], [f]).

         This Committee previously has advised that a candidate for town justice who seeks election in a primary or general election may not circulate separate petitions to form a judicial convention and/or to name a delegate to the party's national convention, as in doing so the candidate would be "engaging in partisan political activity unrelated to [his/her] own campaign for elective judicial office" (Opinion 97-75 [Vol. XV]). However, in the present inquiry, the judge advises that the only way he/she can secure the party’s nomination for Supreme Court is if the registered party members elect a delegate who will vote to nominate him/her at the party convention. Therefore, the inquiring judge’s conduct will be related to his/her own campaign for elective judicial office. It is the Committee’s view that, under these circumstances, a judicial candidate may ask voters to elect a particular judicial convention delegate in the primary election, but must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy (see 22 NYCRR 100.5[A][1][e]).