Joint Opinion 10-101/11-01

April 28, 2011

Digest:         (1) A candidate for Supreme Court may use his/her own campaign funds to pay for campaign literature or mailings in which the judicial candidate will ask voters to vote in a primary election for the judicial convention delegates who will support his/her nomination, but the candidate must make clear that his/her endorsement of the delegate candidates is for the purpose of furthering his/her own candidacy. (2) In such campaign literature or mailings, the Supreme Court candidate may announce and comment on the fact that particular delegate candidates have pledged to support him/her but should not further describe or comment on the delegate candidates’ views or stances on issues. (3) A Supreme Court candidate may not make campaign contributions to a delegate candidate’s campaign and may not pay for the delegate candidates’ own advertisements. (4) A Supreme Court candidate may circulate petitions containing only the names of the delegate candidates who will support his/her nomination, and no other names, but must make clear that his/her endorsement of such delegates is for the purpose of furthering his/her own candidacy. (5) All such campaign activities are ethically permissible only to the extent that they are legally permitted and otherwise performed in compliance with the Rules Governing Judicial Conduct.

Rules:         22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.5(A)(1); 100.5(A)(1)(c)-(f); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(iv)-(v); 100.5(A)(4)(a); 100.5(A)(4)(c); 100.5(A)(4)(d)(i)-(iii); 101.1; Opinions 09-176; 09-148; 08-157; 07-135; 07-64; Joint Opinion 06-80/06-81; 03-42; 02-64; 98-99 (Vol. XVII); 97-75 (Vol. XV); 91-96 (Vol. VIII); 91-94 (Vol. VIII); 89-89 (Vol. IV).

Opinion:

         Two judges who are candidates for Supreme Court advise that they seek the nomination of one or more political parties that will hold a primary in September to select judicial delegates. It appears that, as a practical matter, the inquiring judges cannot secure their parties’ nominations at the judicial nominating conventions unless judicial delegates who support them are elected in the primary election. The judges each ask about the extent to which they may assist in the campaigns of the delegate candidates who support them. In Inquiry 10-101, the judge asks whether he/she may circulate petitions that contain only the names of the delegate candidates who support the judge. In Inquiry 11-01, the judge asks whether he/she may “use my campaign funds to help elect” such delegate candidates “by advertising their [campaign for office], stances on issues, and support of my supreme court candidacy.”

         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]). To that end, a judge may not directly or indirectly engage in any political activity except as expressly authorized (see 22 NYCRR 100.5[A][1]).

         A candidate for elective judicial office, including a judge, may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). However, a candidate for judicial office may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]); may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); and may not make speeches on behalf of another candidate (see 22 NYCRR 100.5[A][1][f]). Judicial candidates also may not make contributions to other candidates (see 22 NYCRR 100.5[A][1][h]).¹

         In Opinion 08-157, the Committee recognized one narrow exception to the rule against publicly endorsing other candidates. Specifically, a Supreme Court candidate who 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” (Opinion 08-157). The present inquiries, in effect, seek further guidance on the practical implications of this narrow exception.

         The Committee notes preliminarily that, although Opinion 08-157 refers to a single “delegate,” a candidate for Supreme Court who seeks a political party’s nomination may take the actions permitted in Opinion 08-157 with respect to any or all of the delegates who will vote to nominate him/her at the party convention, subject to the limitations set forth in the opinion.

         In Opinion 08-157, the Committee did not specify by which method or methods a candidate may undertake the permissible “ask[ing]” of voters (e.g. orally, in writing, etc.). The Committee believes a candidate for Supreme Court may use his/her own campaign funds to pay for campaign advertisements or mailings in which the judicial candidate will “ask voters to vote in a primary election for the judicial convention delegate[s] who will support his/her nomination, but must make clear that his/her endorsement of the delegate[s] is for the purpose of furthering his/her own candidacy” (Opinion 08-157). That is, the advertisements will clearly be understood as the judicial candidate’s advertisements.

         By contrast, a Supreme Court candidate may not simply pay for the delegate candidates’ advertisements, for two interconnected reasons. First, a judicial candidate may not make financial contributions to other candidates’ campaigns (see 22 NYCRR 100.5[A][1][h]). Thus, if a Supreme Court candidate is paying for an advertisement, that advertisement must directly support his/her own campaign (cf. Opinion 09-176 [permitting judicial candidates to display joint lawn signs]). Second, it would be difficult, if not impossible, for a Supreme Court candidate to ensure that the delegate candidates’ advertisements comply with the limitations set forth in Opinion 08-157 and are otherwise consistent with applicable sections of the Rules Governing Judicial Conduct, leaving the judicial candidate vulnerable to a public perception that he/she is using campaign funds to make statements through others that he/she would not be permitted to make directly (see 22 NYCRR 100.5[A][4][c]).

         With respect to the content of such campaign advertisements or mailings, all restrictions on judicial campaign speech remain fully in effect, and are not obviated merely because a judicial candidate is, to the extent permitted by this opinion and Opinion 08-157, asking voters to vote in a primary election for the delegates who will support his/her nomination for Supreme Court (cf. 22 NYCRR 100.5[A][4][c] [judicial candidate may not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited to do under the Rules]). Thus, all campaign literature must, at the very least, be consistent with the dignity, impartiality, integrity, and independence of judicial office (see 22 NYCRR 100.5[A][4][a]), present facts truthfully and without distortion (see 22 NYCRR 100.5[A][4][d][iii]; Opinion 07-135) and eschew pledges, promises and commitments that are inconsistent with the impartial performance of adjudicative duties (see 22 NYCRR 100.5[A][4][d][i]-[ii]). Because the candidates in Inquiries 10-101 and 11-01 are sitting judges, they must also avoid comment on pending or impending matters in the United States or its territories (see 22 NYCRR 100.3[B][8]).

         Applying these principles to Inquiry 11-01, the Committee concludes that it is permissible for a Supreme Court candidate to announce or comment on the fact that a particular delegate has pledged to support him/her, and include such information in his/her campaign literature and mailings. In fact, the Committee cannot emphasize enough that, to the extent that a Supreme Court candidate wishes to advertise the campaign of a delegate candidate, he/she “must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy” (Opinion 08-157). A Supreme Court candidate must not include in his/her campaign literature any description or comment on views or stances of the delegate candidates who will support him/her, other than the fact of their support.

         Finally, with respect to circulating petitions on behalf of the judicial delegates (Inquiry 10-101), this Committee has consistently advised that a judicial candidate may circulate his/her own individual petitions, as well as joint petitions that name the judicial candidate in addition to other candidates on his/her slate (see 22 NYCRR 100.5[A][1][c]-[e]; Opinions 09-148; 03-42; 02-64; 98-99 [Vol. XVII]; 91-96 [Vol. VIII]; 91-94 [Vol. VIII]; 89-89 [Vol. IV]; cf. 22 NYCRR 100.5[A][2][iv] [judicial candidate may permit his/her name to be “listed on election materials along with the names of other candidates for elective public office”). The passing of petitions that contain the judicial candidate’s name, with or without the names of other candidates, constitutes participation in the judicial candidate’s own campaign for judicial office and is therefore permissible (see Opinion 03-42; 22 NYCRR 100.5[A][1][c]). Conversely, for similar reasons, this Committee has consistently advised that a judicial candidate may not circulate individual or joint petitions for other candidates, if such petitions do not include the judicial candidate’s own name as a candidate (see 22 NYCRR 100.5[A][1][c]-[e]; Opinions 09-148; 02-64; 98-99 [Vol. XVII]; 97-75 [Vol. XV]; 91-96 [Vol. VIII]; 91-94 [Vol. VIII]; 89-89 [Vol. IV]).

         Because Supreme Court candidates are nominated exclusively at judicial nominating conventions, it is clear that a Supreme Court candidate’s name will not be listed on any bona fide individual or joint petition. Thus, there is no possibility of a joint petition that lists the Supreme Court candidate’s name, as a candidate, along with the names of the delegate candidates who will support him/her (cf. Opinion 97-75 [Vol. XV]). In light of Opinion 08-157, the Committee now concludes that a Supreme Court candidate may, in furtherance of his/her own campaign, pass petitions containing the names of one or more delegate candidates who will support him/her, as long as those petitions do not contain the names of any other candidates, and as long as he/she “make[s] clear that his/her endorsement of the delegate[s] is for the purpose of furthering his/her own candidacy” (Opinion 08-157).

         The Committee notes that a Supreme Court candidate remains subject to all requirements of the Election Law, including contribution limits and reporting requirements, as well as all requirements of the Rules Governing Judicial Conduct. The Committee is not passing on the legality of the campaign activities described in this opinion, and is not commenting on any legal implications of such conduct (see 22 NYCRR 101.1).

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    ¹ During their window period, judicial candidates may purchase two tickets to, and attend, politically sponsored events, subject to price and other limitations set forth in the Rules (see 22 NYCRR 100.5[A][2][v]). Purchasing tickets to another candidate’s fund-raiser pursuant to Rule 100.5(A)(2)(v) is thus, from the perspective of judicial ethics, permissible conduct in support of the judicial candidate’s own campaign, rather than an impermissible contribution to another candidate’s campaign (see e.g. Opinion 07-64; Joint Opinion 06-80 and 06-81).