Opinion 11-65

June 16, 2011

Digest:         To avoid any appearance of undue pressure, a town justice should not ask individual court officers of the town court to publicly support his/her re-election.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1)-(2); 100.5(A)(4)(a); 100.5(A)(5); Opinions 08-152; 07-24; 05-101; 01-44 (Vol. XX).

Opinion:

         A part-time town justice asks whether he/she may solicit a letter of support or endorsement for his/her re-election campaign from individual court officers who serve in the judge’s court. The Committee notes that the court officers are not the judge’s personal appointees, who would have a direct interest in the judge’s re-election, but are instead public sector employees who would ordinarily expect to perform their duties in the town court without regard to the outcome of any particular judicial campaign.

         A judge or non-judge who is a candidate for public election to judicial office may participate in his/her own campaign during his/her window period (see 22 NYCRR 100.5[A][2]), subject to certain limitations (see generally 22 NYCRR 100.5[A][1]-[2]). For example, a judicial candidate must act in a manner consistent with the impartiality, integrity and independence of the judiciary throughout his/her campaign (see 22 NYCRR 100.5[A][4][a]).

         The Committee has previously advised that a judge seeking elective judicial office may solicit endorsements for his/her election during the judge’s window period, either directly or through a campaign committee (see Opinions 01-44 [Vol. XX] [candidate may personally seek the endorsement of the Police Benevolent Association and other organizations]; 08-152 [candidate may ask attorneys who regularly appear before him/her to attend a reception and speak to attendees about their experience appearing before him/her as a judge, as long as he/she takes care to avoid any appearance of undue pressure on the attorneys in making this request]; 22 NYCRR 100.5[A][5] [candidate’s campaign committee may obtain public statements of support for the candidate]).

         Under the circumstances presented here, the Committee believes that the judge should not personally solicit endorsements from individual court officers who work in the judge’s court, as this could create an appearance of undue pressure on public employees who might otherwise expect their employment to be completely independent of the outcome of a specific judge’s re-election campaign (see 22 NYCRR 100.5[A][4][a] [judicial candidate must act in a manner consistent with the impartiality, integrity and independence of the judiciary]; see also 22 NYCRR 100.2 [judge must avoid even the appearance of impropriety]; 100.2[A] [judge must act to promote public confidence in the judiciary’s integrity and impartiality]).

         The judge remains free, however, to solicit endorsements during his/her window period from any organization to which the court officers may belong, such as a labor union or a court officers’ association (see Opinion 01-44 [Vol. XX] [candidate may personally seek the endorsement of the Police Benevolent Association and other organizations]; cf. Opinion 07-24 [judge need not recuse when labor party that endorsed the judge’s candidacy is a party in a matter before him/her]), as long as the judge’s political activities take place away from the courthouse (see e.g. Opinion 05-101 [candidate must take care to avoid conveying “the impression that the courthouse is being used for political purposes and, in particular, to facilitate the candidacy of a sitting judge”]).