Opinion 09-176
December 4, 2009
Please Note: Opinion 23-43 states: "Opinion 09-176 is overruled to the extent it permits two judicial candidates who are not on the same slate to display campaign lawn signs that have both candidates' names printed on them or otherwise appear in joint campaign advertisements." See Opinion 23-43 for more information.
Digest: Two judicial candidates may display campaign lawn signs that have both candidates’ names printed on them, but they may not send voters one letter conveying both candidates’ qualifications and bearing both candidates’ signatures that is printed on letterhead comprising both candidates’ names.
Rules: 22 NYCRR 100.0; 100.0(Q); 100.5(A)(1)-(2); 100.5(A)(1)(c)-(e); 100.5(A)(2)(ii)-(iv); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); 100.6(A); Opinions 07-167; 05-117; 05-99; 03-06; 01-99 (Vol. XX); 99-117 (Vol. XVIII).
Opinion:
A town justice who is seeking re-election asks whether it is ethically permissible for him/her to engage in certain joint campaign activity with a non-judge candidate for judicial office in the same town court where the town justice currently presides.
Although they have not yet secured their party's nomination, the candidates would like to communicate with residents who will vote in their party's primary by displaying campaign lawn signs that have both candidates’ names printed on them and by sending voters a joint letter. Both candidates would sign the letter that would be printed on letterhead comprising both candidates’ names and would convey each candidate’s qualifications in a separate paragraph. The proposed lawn sign would read "[Candidate X]/[Candidate Y] for ______ Town Justice."
All candidates for elective judicial office, whether a judge or a non-judge, must comply with the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]), which permit all such candidates to engage in limited political activity in support of their own campaigns during their window periods (see 22 NYCRR 100.0[Q]; 100.5[A][1]-[2]; 100.6[A]). Candidates for elective judicial office may appear alone or with other members of their slate in advertisements supporting their own candidacy (see 22 NYCRR 100.5[A][2][ii]-[iv]; Opinion 01-99 [Vol. XX]) but may not publicly endorse any other candidates or participate in any other candidate's campaign for any public office (see 22 NYCRR 100.5[A][1][c]-[e]). Also, all judicial campaign advertisements must be truthful, dignified, and consistent with the impartiality, integrity and independence of judicial office (see 22 NYCRR 100.5[A][4][a]; 100.5[A][4][d][i]-[iii]).
The Committee previously has advised that a candidate for judicial office may display campaign signs supporting his/her own candidacy during the applicable Window Period, including signs that list other candidates for public office who make up the slate1 of which the judicial candidate is a part (see Opinions 07-167; 05-99). However, the judicial candidate must ensure that he/she does not publicly endorse any other candidate (id.). Accordingly, the Committee concludes that the proposed joint lawn sign is permissible, as it accurately reflects that both candidates are seeking a Town Justice position (22 NYCRR 100.5[A][4][d][iii]) and does not create an appearance that the two candidates are endorsing each other (22 NYCRR 100.5[A][1][e]).
However, the proposed joint letter is impermissible. In prior opinions, the Committee has advised that a judicial candidate may not indirectly endorse another candidate for judicial office (see Opinion 05-117, [candidate seeking judicial office may not include statement in campaign materials that he/she is unanimous choice to join incumbent on the bench]; Opinion 99-117 [Vol. XVIII], [judicial candidates may not indirectly endorse each other by "pooling" their judicial experience and advertising their combined years of judicial experience]; and Opinion 03-06 [judicial candidates may not participate in each other's campaigns by forming a single campaign committee]). Although the proposed joint letter does not contain a direct endorsement, the Committee believes that the joint letterhead and joint signatures, used for a letter that sets forth both candidates' qualifications, would constitute an impermissible indirect endorsement by each candidate of the other (see 22 NYCRR 100.5[A][1][c]-[e]; Opinion 01-99 [Vol. XX] [noting that at a joint fundraiser, neither candidate may comment on the qualifications of the other]; cf. Opinions 05-117; 03-06; 99-117 [Vol. XVIII]).
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1 The word "slate" is not defined in the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.0), and the Committee declines to impose a requirement that a judicial candidate may not appear in any joint advertisements until his/her party has chosen its official slate (cf. Opinion 05-99).